the time in his own immediate care or charge, or under the care of his the adjoining owner occupies his land, in which case the other owner may be compelled to fence. Owners of land adjoining highways are not compelled to fence the highway. Where division fences are not required, each owner is liable for any damages arising from the straying of his cattle on the occupied land of others; and where no division fence is maintained, neither can legally pasture his lands until both have agreed to occupy in common. See Gen. Stat. of 1863, ch. 102. If the owner of cattle allows them to stray upon the land of one who is not an adjoining proprietor, he will be liable in trespass, as it is the duty of the owner of cattle to restrain them, and it is not the duty of the owner of the close to fence against any animals not belonging to an adjoining proprietor. Wilder v. Wilder, 38 Vt. 678. The statutes of Massachusetts declare what shall be deemed a legal fence, and provide that occupants of inclosed lands shall keep up and maintain partition fences between their own and the next adjoining inclosures in equal shares, so long as both parties improve the same. Gen. Stat, ch. 25, ss. 1, 2. Under these statutes, as at common law, where the owner of land is not bound by prescription, agreement, or assignment of fence-viewers, to maintain a division fence, he may maintain an action of trespass quare clausum fregit against an adjoining owner whose cattle escape upon his land. Thayer v. Arnold, 4 Met. 589. In Rhode Island, the requisites of a sufficient fence is prescribed by statute, and the rights and liabilities of the adjoining proprietors declared and determined. Gen. Stat. of 1872, ch. 94. The statutes of Connecticut require the proprietors of lands to make and maintain sufficient fences to secure their fields, and declare what shall be deemed such a fence. R. S. of 1866, ch. 21. Under this statute the owner or occupier of land is obliged to fence against cattle at his own risk, and if he fails to do so, he cannot recover damages for trespass by cattle. Wright v. Wright, 21 Conn. 329. The statutes of New Jersey require the owners of adjoining lands to maintain an equal proportion of their division fences, except where they chose to let their lands lie open or vacant, and declare what shall be deemed a sufficient fence, and further provide that the owner of cattle trespassing over or through a lawful fence shall be liable for the damages. No land owner can recover damages for trespasses through a defective division fence which he is bound to maintain; but he is liable for damages done by his own cattle to the land of the adjoining owner by reason of his own defective fences. See Nixon's Dig. (4th ed.) 331, et seq. See also Laws of 1870, ch. 398. In cases where the adjoining owners have not entered into any agreement in respect to a division fence, and the cattle of the one have entered upon the lands of the other, the owner of the cattle will be liable to the other in trespass. Coxe v. Robbins, 4 Halst. 384. In Pennsylvania the statute requires the owner of improved lands to fence them, not only to restrain his own cattle, but also to shut out the roving cattle of his neighbors, and trespass cannot be maintained for the entry of cattle upon improved lands. Gregg v. Gregg, 55 Penn. St. 227. But except where the statute requires the owner of lands to fence, the common law rule requiring the owner of cattle to restrain them at his peril is still in force. Id. In Delaware the owner of cattle is liable in damages for trespasses on lands inclosed with a lawful fence; and if such cattle are unruly and break through such fence after notice that they are unruly, he is liable in double damages. See Revised Code, ch. 57. In Maryland the subject of fences is regulated by the local laws for the several counties. Where there is no statutory rule, the common law rule prevails, and each owner of cattle is bound to restrain them on his own close at his peril, unless the adjoining owner is bound by prescription to fence against him. Richardson v. Milburn, 11 Md. 340. For the fence laws of Virginia, see Code of 1860, ch. 99, s. 1, as amended by ch. 239 of Laws of 1872; Code, ch. 99, ss. 3–5. For the fence laws of West Virginia, see Code of 1868, ch. 60. For the fence laws of Ohio, see 1 R. S. ch. 45, as amended by the Laws of 1873, p. 246. In Michigan it was provided by the act of 1847 that "no person shall recover for damages done upon lands by beasts, unless in cases where, by the by-laws of the township, such beasts are prohibited from running at large, except when such lands are inclosed by a fence," etc. servants, or in the custody of a stranger. In this last case, the stranger As to what is a legal fence in this state, and the person liable to repair, see 1 Comp. Laws of 1871, ch. 14. See also as to the liability of the owner of cattle trespassing on land of another, Aylesworth v. Harrington, 17 Mich. 417; Williams v. Michigan Central R. R. Co. 2 id. 259. In Indiana it is provided by statute that the owner of land protected by a lawful inclosure may recover the amount of damage done, but otherwise where the fence was not lawful. See 1 R. S. 1862, ch. 62. This act applies only to outside fences, and in respect to cattle trespassing through other fences, the parties are left to their common law rights and liabilities. Coot v. Morea, 33 Ind. 497. Brady v. Ball, 14 id. 317. Page v. Hollingsworth, 7 id. 317. As to what is a lawful fence, see Laws of 1865, ch. 173. In Illinois the owner of cattle is not required to keep them upon his own land; and if they stray upon the land of another, the latter cannot maintain trespass unless he can show that his land was protected by a good and sufficient fence. Misner v. Lighthall, 13 Ill. 609. Seely v. Peters, 5 Gilm. 130. Headam v. Rust, 39 Ill. 186. Stoner v. Shugart, 45 id. 76. For the laws of Wisconsin in respect to fences, see 1 Taylor's Stat. ch. 17. For the laws of Minnesota, see Revised Stat. of 1866, ch. 18; R. S. ch. 10, s. 15; id. ch. 19 8. 29. The law allowing cattle to run at large has been repealed. R. S. ch. 122. In Iowa the common law requiring every owner of cattle to restrain them within his own close is not in force; and in order to maintain trespass for damages by cattle, the plaintiff must show that the land trespassed upon was inclosed by a fence sufficient to turn ordinary stock. Wagner v. Bissell, 3 Iowa, 397. Heath v. Cottenback, 5 id. 490. But where two persons have fields fenced in common, either will be liable for the damage to the other if he willfully turns his stock into the inclosure. Broadwell v. Wilcox, 22 Iowa, 568. For the law of Iowa in respect to division fences, see Code of 1873, tit. 11, ch. 4; Phillips v. Oyster, 32 Iowa, 257. In Missouri the common law rule is not in force, and damages cannot be recovered against the owner of cattle for their trespass unless the lands entered upon were legally inclosed. German v. Pacific R. R. Co., 26 Mo. 441. As to what is a legal inclosure, see 1 Wagner's Stat. ch. 71. In case the field trespassed upon was legally inclosed, the owner of the land may recover damages for the first trespass, double damages for the second, and may kill the beast trespassing for a third offense. Id. In Kansas, an owner cannot recover for injuries done to his crops by cattle trespassing, unless he can show that his field was inclosed by a lawful fence. Larkin v. Taylor, 5 Kansas, 433. For the fence laws of Kansas, see Gen. Stat. of 1868, ch. 40. In Nebraska, the owner of animals trespassing on lawfully inclosed land is liable in damages. And as to what is a lawful inclosure, see Gen. Stat. of 1873, ch. 2, ss. 18-38. In Nevada, the owner of cattle breaking into any grounds inclosed by a lawful fence is liable for the actual damage for the first offense, and in double damages for all subsequent offenses; and neither of two or more persons having fields inclosed in common can lawfully turn cattle on his land to the injury of the others, without becoming liable in damages. 2 Comp Laws of 1873, pp. 459–460. In California, the owner of cattle breaking into grounds inclosed by a lawful fence is liable in damages to the same extent as in Nevada; and the requisites of a lawful fence are par ticularly described by statute. See 1 Gen. Laws of 1864, ss. 3029-3062. But where the lands entered upon are not so inclosed, the owner of cattle is not liable for the trespass. Comerford v. Dupuy, 17 Cal. 308. And see Logan v. Gedney, 38 id. 579. For the fence laws of North Carolina, see Rev. Code, ch. 48; Laws of 1873, ch. 98; id. 193; Laws of 1871, ch. 187. . In South Carolina, the owner of animals trespassing on the lands of another is liable in damages if the field entered upon was inclosed by a lawful fence, but otherwise not. 6 Stat. at Large, No. 2430. And see 2 Stat. at Large, No. 108. In Georgia, no domestic animal can lawfully run at large, and the owner of an animal trespassing is made liable for all damages. Code of 1878, ch. 9, ss. 1443-1451. In Florida, owners of cattle are not liable for trespass on lands not protected by a lawful fence. The requisites of a lawful fence are defined by statute. See Thompson's Digest, ch. 5. In Alabama, a partition fence between adjoining proprietors is the joint property of both ; and each is bound to keep the entire fence in good repair. Neither can mairtaip trespass against the other for injuries arising from an insufficient fence. Revised Code of 1867, tit. 13, ch. 8. Walker v. Watrous, 8 Ala. 493. See Clay's Digest, 241, s. 4; Moore v. Leven 24 Ala 310. may be sued as well as the owner for the trespass(n). But if my servant, without my knowledge, takes my beasts and puts them in another's land, my servant is the trespasser, and not I; for, by his wilful dealing with the beasts without any authority from me, he gains a special property in them for the time, and for this purpose they become his beasts(o). But if a wife so deals with her husband's cattle, the husband himself is the trespasser, for his wife can gain no special property in them as against the husband(p). A commoner who puts his beasts upon a common which is not enclosed, is bound at his peril to see that his beasts do not stray from the common and trespass upon another man's land(q). 378 Trespass from want of fences and from defective fences.-Where the plaintiff himself has contributed to the injury of which he complains, he has no ground, as we have seen, for seeking compensation in damages (ante, p. 24). If, therefore, a man is bound by contract or prescription (ante, p. 149), to repair a fence between my land and his, and he neglects to repair, and by reason thereof my beasts get on to his land, this is a good justification to an action of trespass, brought by him(r). In such a case it is lawful for me to go into my neighbor's land after my beasts, and chase them back into my own land; and I may plead this as a justification for the trespass, because it was rendered necessary by the default of my neighbor(s). In Kentucky, the statute defines a lawful fence, and makes the owner of cattle trespassing on fields inclosed by a lawful fence liable for actual damages for the first offense, double damages for the second, and treble damages for the third, etc., and gives the owner of the land trespassed upon the right to kill the cattle trespassing, on giving a prescribed notice. See Gen. Stat. of 1873, ch. 55, art. 1. For the laws of Tennessee in respect to animals trespassing, see Code of 1858, ch. 3. For the fence laws of Louisiana, see Revised Civil Code of 1870, ch. 3, s. 1, arts. 675-690. For the laws of New York in regard to fences, see Laws of 1872, ch. 377; Laws of 1871, ch. 635; Laws of 1866, ch. 540; Laws of 1850, ch. 319; Laws of 1838, ch. 261; 1 R. S. part 1, ch. 11, tit. 4, art. 4; id. tit. 2, art. 1. (n) 2 Roll. Abr. 546, pl. 20. Dawtry v. Huggins, Clayt. 32, pl. 56. Noyes v. Colby, 10 Foster (N. H.), 143. (0) 2 Roll. Abr. TRESPASS, 553, pl. 25. (p) 2 Roll. Abr. TRESPASS, 553, pl. 2. In New York, under the statutes relating to the rights and duties of married women, a married woman having a separate estate may be held liable for damages done by the straying of her cattle from her own premises upon adjoining lands, notwithstanding the husband and children reside with her upon the lands, and both the land and cattle are used for the support of the family. Rowe v. Smith, 45 N. Y. 230. (g) 20 Ed. 4, fo. 10b, cited in Read v. Edwards, 34 Law J., C. P. 32. (r) 2 Roll. Abr. TRESPASS, 565, pl. 3, citing 19 Hen. 6, 34; 39 E. 3, 3b. See Cowles v. Balzer, 47 Barb. (N. Y.) 562; Walker v. Watrous, 8 Ala. 493; Lawrence v. Coombs, 37 N. H. 331; Shepherd v. Hees, 1? Johns. 433. (8) 2 Roll. Abr. TRESPASS, 565, pl. 4. 379 Who is bound to repair fences.-Whenever two persons have adjoining fields, and no hedge or fence between them, each must take care that his own beasts do not trespass on his neighbor(t), unless one proprietor has acquired a right or title, by grant or prescription, to have the boundary-fence between his close and that of the adjoining proprietor maintained and repaired at the expense of such adjoining proprietor(u) (ante, p. 149). "Every man must use his own land so as thereby not to hurt another; and as, of common right, one is bound to keep his cattle from trespassing on his neighbor, so he is bound to use anything that is his so as not to hurt another by such user. If, therefore, a vendor sells a piece of pasture lying open to another piece of pasture of which he is possessed, the vendee is bound to keep his cattle from running into the vendor's piece"(x). If a landowner, who has land abutting upon a highway, neglects to fence the land from the highway, so that cattle stray from the high-road and injure his crops, he cannot immediately distrain the beasts' damage feasant, or treat the owner of the beasts as a trespasser, but must either drive them out himself, or allow a reasonable time to the drovers in charge of them to get them out of the land(y). But if the beasts are not lawfully using the highway, if they have strayed away from the owner or his servants, and are trespassing upon the public thoroughfare, and pass from thence on to the adjoining uninclosed land, this is a trespass for which the owner of the beasts is responsible(z). And whenever one landowner is bound to maintain and repair a fence for the benefit of the adjoining landowner, and cattle escape out of the land of the latter, and trespass upon the land of the person who ought to have kept up the fence, it is no excuse that the fences were out of repair, if the beasts were trespassers in the place from whence they came. If it be (t) Bayley, J., Boyle v. Tamlin, 6 B. & C. 337; Dyer, 372b. (u) See Barber v. Whiteley, 34 Law J., Q. B. 212; Bradbury v. Gilford, 53 Me. 99; Gen. Stat. of Vermont, 1863, ch. 102; Aylesworth. Harrington, 17 Mich, 417; 2 Comp. Laws of Nevada, 1873, p. 460; Walker v. Watrous, 8 Ala. 493. (x) Tenant v. Goldwin, 6 Mod. 314. (y) Goodwin v. Chevely, 4 H. & N. 631; 28 Law J., Exch. 298. (z) 2 Roll. Abr. 565, pl. 7. Dovaston v. Payne, 2 H. Bl. 528. In those localities where cattle may lawfully run at large, and in those states where it has been declared by statute that an entry upon uninclosed land shall not create a liability for damages, this doctrine is clearly inapplicable. The doctrine stated in the text is inapplicable in Ohio (Kerwhacker v. Cleveland, Columbus and Cincinnati R. R. Co., 3 Ohio, N. S. 172; Cleveland, Columbus and Cincinnati R. R. Co. v. Elliott, 4 Ohio, N. S. 474), in Illinois (Headam v. Rust, 39 Ill. 186; Stoner v. Shugart, 45 Ill. 76), in Iowa (Wagner v. Bissell, 3 Iowa, 396), in Missouri (Gorman v. Pacific R. R. Co., 26 Mo. 441), in California (Comerferd v. Dupuy, 17 Cal. 308; Logan v. Gedney, 38 Cal. 579), in North Carolina (Johns v. Witherspoon, 7 Jones' Law, 555), in South Carolina (Murray v. South Carolina R. R. Co., 10 Rich. Law, 227), in Florida (Thomp. Dig, ch. 5), in Tennessee (Code of 1858, ch. 3), and probably in many other states. See ante, p. 324, note m. a close, the owner of the cattle must show an interest or a right to put them there. If it be a way, he must show that he was lawfully using the way(a). 380 Destruction of crops by rabbits and pigeons.—If a man encourages the growth of wild rabbits upon his land, and forms "coney burrows" there, and the rabbits stray from his land to the land of his neighbor, this is no trespass for which the breeder of the rabbits is responsible, for when they have left his land they are not then his rabbits doing damage. Being animals feræ naturæ, he has no more property in them. after they have left his soil, than in the birds of the air, which may breed in one man's land, and devour the crops of another(b). The only remedy, therefore, for a person whose crops are eaten by wild rabbits. is the capture and destruction of the rabbits. Commoners may destroy rabbits which come upon the common from the adjoining land, not being the lord's land(c); but they have no remedy against those who breed them(d). The same law prevails with regard to pigeons; "if they come upon my land I may kill them," but I have no remedy against any one for breeding them(e). 381 Damage done by intruding dogs.-A man is not, by the common law, considered to have the same valuable property in a dog as in cattle and sheep; and it has been held that if a man's dog goes into his neighbor's garden, and spoils and injures his crops, no action will lie(ƒ), unless the dog is of a peculiarly mischievous disposition, so as to be unfit to be at large, and this is known to the master(g). If the master accompanies the dog, and is himself a trespasser, the damage done by the dog is consequential upon the trespass by the master(1⁄2). Owners of dogs in Scotland and Ireland have recently been made liable for injuries done to sheep and cattle by their dogs: and all persons (a) Dovaston v. Payne, ut sup. ; Anon. 3 Wils. 126. That the owner of real estate is not bound to maintain partition fences against one who is not an adjoining owner or occupant, see Aylesworth v. Herrington, 17 Mich. 417; Wilder v. Wilder, 38 Vt. 678. See, also, Page v. Olcott, 13 N. H. 399. (b) Boulton's case, 5 Co. 104a; Cro. Eliz. 547. It has been held, in Missouri, that a land owner is under no obligation to fence against animals feræ naturæ, but on the other hand, the owner of such animals must keep them at his peril, and that he is liable for damage done by them on the lands of others, whether such lands were fenced or not. Canefox v. Crenshaw, 24 Mo. 199. (c) Cooper v. Marshall, post, ch. 3, s. 1. (d) Hinsley v. Wilkinson, Cro. Car. 387. (e) Dewell v. Saunders, Cro. Jac. 490. Bayley J., Hannan v. Mockett, 2 B. & C. 939. (f) Holt, C.J., Mason v. Keeling, 12 Mod. 336. Brown v. Giles, 1 C. & P. 118. Woolf v. Chakler, 31 Conn. 121. (g) Read v. Edwards, ante, p. 327. See Fairchild v. Bentley, 30 Barb. (N. Y.) 147. (h) Beckwith v. Shordike, 4 Burr. 2093. by ferocious dogs, see ante. pp. 254, 255. roll v. Weiler, 4 Sup. Ct. (N. Y.) 131. Woolf v. Chakler, 31 Conn. 121. As to damage done As to damage done by several dogs jointly, see Car |