The opinion of the court was delivered by
Valentine, J.:
There is but one question of laAV to be *306decided in this case; and the most favorable statement of facts that can be made for the plaintiff in error so as to present that question of law is as follows: Baker and Robbins owned adjoining farms, fenced in common—no partition fence having-been made between them, though they used their farms in severalty. Baker turned a herd of cattle righfully upon his own premises, without the consent of Robbins however, and lcnowing-ly permitted them to wander upon the premises of Robbins and do great injury to a crop of wheat. Robbins sued Baker, and the only question for us to determine is, whether Baker is liable for said injury. We think he is. We suppose that it is settled beyond all controversy, that at common law the owner of cattle was required to take care of them, and not allow them to stray or wander upon the land of another, whether such land was fenced or not; and if he did allow his cattle to so stray or wander he was liable for all injuries they might commit. Now, as the common law. has been adopted in this state by statutory enactment, we suppose it must necessarily follow that every owner of cattle must take care of them or be liable for all. injuries they may commit by roaming on the land of another, except where the statutes elsewhere and otherwise «provide. ' We have statutes that provide for erecting and maintaining partition fences: Gen. Stat., 488, 492, articles 3 and 4. And where either party chooses to build and maintain partition fences under these statutes probably the statutes are the measure of his rights, remedies, and liabilities. But where both parties choose to do otherwise than to build and maintain a partition fence under the statutes the common law must govern. The statutes do not require the parties to build partition fences. They may otherwise agree if they choose: Gen. Stat., .488, §8; and where, they agree that they will not build any partition fence, as it must be presumed was the present case, the rights, remedies and liabilities of the parties must be governed by the common law. The parties in this case fenced their fields in common, and neither ever' attempted to- build or have built a partition fence. We would refer to the following *307authorities: Myers v. Dodd, 9 Ind., 290; Johnson v. Wing, 3 Mich., 163; Henderson v. Rust, 39 Ill., 186; McCormick v. Tate, 20 Ill., 334, 338; Buckmaster v. Cool, 12 Ill., 74; Stoner v. Shugart, 45 Ill., 78; Rust v. Low, 6 Mass., 91, 101; Little v. Lathrop, 5 Me., 356.
• Authorities with reference to cattle running at large upon open and uninclosed lands, and' from there wandering upon the lands of others, cannot of course have any application to this case. Nor can authorities concerning statutes or fence laws which differ from ours, have any application to this case.
• If we have failed to consider any point which counsel have desired us to consider we would refer to Rule 2 of the supreme ■court, (5 Kas., 9; 6 Kas., 11,) as a sufficient reason for the omission. We have considered and decided the main question in the case, although counsel have not referred us to a single page of the record. The judgment of the court below is .affirmed.
All the Justices concurring.