4 N.H. 36 | Superior Court of New Hampshire | 1827
At common law the owner of a close was not bound to fence against an adjoining close unless by force of a prescription ; but he was at his peril
But our statute, entitled “ an. act relative to common fields and regulating fences,” sec. 9, enacts “that where any damage shall be done to any person whose fences are insufficient and such damage shall happen through such deficiency of fence by swine yoked and ringed according to law,horses fett ered and other creatures not prohibited from feeding on the highways and commons, the person sustaining such damage may not impound the creatures so doing damage, nor shall he recover any damage therefor.” This clause in the statute has always been construed to bar any action for damages done in a close by cattle, when the cattle broke into the close through the insufficiency of fences which the owner of the close was bound to keep in repair. And as the defendant’s horse in this case broke through a fence between the plaintiff’s land and a public highway, it is clear the plaintiff was bound to keep the fence in repair.
There is however another principle of law which must be examined in relation to this case. It is well settled that the owner of a close is only bound to fence against creatures, which are rightfully on the adjoining land. 6 Mass. Rep. 99.
It therefore becomes necessary to determine whether the defendant’s horse was rightfully on the highway when he broke into the plaintiff’s close ?
We have decided that the public has only an easement, or right of passage in the highways laid out through the land of individuals. 1 N. H. Rep. 16, Makepeace v. Worden & a. The, title to the land and all the profits to be derived from it consistently with the right of way remain in the owner of the soil. 6 Mass. Rep. 454, Perley v. Chandler. 2 H. Bl. 527, Dovaston v. Payne.
But it is contended that the common law is in this respect altered by our statute of January 14, 1795, entitled “an act to prevent, damage being done by horses, mules and jacks,” which prohibits horses and mules from going at large on highways and commons without being fettered with good and sufficient fetters, under a penalty. It is urged that as horses are by this law prohibited from going at large without fetters, it is by implication a license to permit them to go at large with fetters. But admitting that, the legislature; has the power to authorize one manto turn his horse to graze upon the land of another, which is very questionable, still it would be a forced and unnatural interpretation of this statute to construe it to give a license of that nature. Every man has a right to turn his horses into the highway to graze, where he owns the soil over which the highway is laid, and this statute was intended to regulate the exercise of this right and not to gi ve any new right. In Massachusetts a similar statute has been construed to give no new right. 16 Mass. Rep. 36.
It is also contended in this case that the common law is changed by the ninth section of the statute of February 8, 1791 which we have before recited and which declares that when any damage shall be done to any person through the insufficiency of his fence by horses fettered and other creatures not prohibited from feeding on the highways and commons, no action shall be sustained for the damage. 1 N. H. Laws, 404. But this clause in the statute cannot be construed to give a right to one man to turn his horses to feed upon the land of another. It admits a much more reasonable and natural interpretation. AVe have before stated that at the common law every
And if I turn my horse into the highway to feed on my own soil there, I am bound to keep him upon my own soil, and if he escape into a part of the highway which runs through the land of my neighbor, and there feed, it is a trespass for which I am liable, and a fortiore if my horse being thus unlawfully on my neighbor’s soil in the highway break thence into his enclosure I shall be liable, whether his fence were sufficient or not. .Such in our opinion is the true meaning of this section of the statute. It was not intended to give to any the right of using the
These principles are easily applied to the case now under consideration. The defendant offered to show that the horse was duly fettered and at; lartre upon the highway and that lie escaped thence into the plaintiff’s close through a defect in the fence, but he did not offer to show that the soil of the highway, whence the horse escaped, was his soil. The horse then cannot be considered as rightfully in the highway and the plaintiff was not bound to fence against him.
Judgment on the verdict.