1 Cow. 78 | N.Y. Sup. Ct. | 1823
Sic utere tuo, ut non alienum lcedas, is a sound as well as an ancient maxim. But in all cases, where damages are sustained by the plaintiff, in consequence of the use which the defendant makes of his own property, it is necessary to inquire, not only whether the defendant has been guilty of culpable negligence on his part, but whether the plaintiff is free from a similar charge. In the case of Blyth v. Topham, (Cro. Jac. 158, 9,) the defendant digged a pit in a common, and the plaintiff’s mare, being straying there, fell into the pit and perished. The Court held that no action lay, because the plaintiff, shewing no right why his mare should be in the common, the digging the pit was lawful as against him. His loss was, therefore, damnum absque injuria. Otherwise, had he digged the pit in the highway. (Roll. Ab. 88. Co. Litt. 56, a.) In Townsend v. Wathen, (9 East, 277,) the defendant set traps in his unenclosed wood, which was intersected by highways' and paths. The plaintiffs dogs were caught in the traps and injured, for which he recovered. Ch. J. Ellenborough places
Judgment reversed.
The nucleus, of all the authorities in relation to this subject, is the ancient maxim, that no man shall take advantage of his own wrong or negligence, in his prosecution or defence, against another. (12 John. 434.) A kindred principle, on which this doctrine maybe placed, is, that one is bound to use any thing that is his, so as not to hurt another by such user. (6 Mod. 314.)
To apply these maxims, we must first inquire, how the common law stood in the matter ? and, secondly, how far, and in what respect, it has been, or maybe, departed from, by statute, agreement, or prescription?
First. At common law, every man was bound to keep his beasts within his own close, under the penalty of answering, by distress or action, for all injury arising from their being abroad. (Per Parsons, C. J. 6 Mass. Rep. 94. F.N.B. 128. 22 H. 6.9. Br. Trespass, 345,439. 16 H. 7.14. 13 Vin. Abr. Fences, A. Dyer, 372, pl. 10. 20 Edw. 4.10. 6 Mod. 314. And vid. 1 Taunt. Rep. 529. 19 John. 385. 3 Bl. Com. 209. Selw. N. P. 1224.) And this, doubtless, is still the law, in relation to such animals, as cannot be restrained by those enclosures which farmers of experience would pronounce proper and sufficient fences.
1. The first exception to the common law, arises from statute, (sess. 36, s. 35, s. 17, 2 R. L. 133,) relative to division or partition fences. The neglect to build or repair, as required by that statute, renders the party liable, in damages, for injuries arising from such neglect; and this, not only by the express declaration of the statute, but at the common law.
Under this statute, before the party can be made liable for defect of his partition fence, the proportion which he is bound to build or repair, ought to be either agreed upon, or assigned, pursuant to the statute. Till this, the
Wherever a dispute arises, between the parties, as to the proportion of fence to be maintained by each, it may be settled by the fence viewers, even Where there has-been an agreement on the subject. (4 John. Rep. 414-15.) and such decision may be made by parol,and proved, like any other fact, resting in the memory of witnesses, (id. 415-16;) and it is finally to be determinedby the balance of testimony, (id.) On being ascertained, under the statute, the assignment,pursuant thereto, imposes the same duty as would result from a prescription; and, instead of a curia claudenda, one tenant may, after proper notice and due time, prescribed by the same section of the statute above quoted, make and repair the fence belonging to the other, on his neglect, and recover the expense of him, in an action for work and labour. (9 John. 136,) Section 18 of the same statute, (2 R. L. 133,) provides a still more speedy remedy for rebuilding_such partition fences, enclosing meadows or lowland, as are liable to be carried away by the floods and high tides!
By statute, (Sess, 36, ch. 35, s. 12,2 R. L. 131,) town meetings may regulate partition and circular fences, and determine the times and manner of using their common lands, meadows and other commons, and the times, places and manner, of permitting or preventing cattle, &c. to go at large.
The subjects of this statute, are either partition or circular fences. The towns have no power to interfere with the interior regulations of a man’s farm, either in keeping his cattle or building hi? fences. (12 John. 433.) They can impose no duties, to maintain fences, beyond those which tenants are bound to maintain, by common or statute law ; though they may, by statute, (2 R. L. 131, s. 12,) determine the sufficiency of these required by
When our ancestors first settled in this country, they found it uncultivated ; and when closes were made by the settlement and cultivation of the lands, there could be no prescription to fence ; and, therefore, the common law, authorising the writ of curia claudenda, being inapplicable to the state of the colony, was never introduced. (Vid. 6 Mass. Rep. 94, 5.) Provisions respecting fences were early made by the legislature of the colony of New-York, which have been continued since the revolution, nearly in their colonial shape. These statutes are the foundation of all the obligations imposed on the citizens by law, to make and repair fences. (Id. 95. Vid. 1 Laws N. Y. by Smith & Livingston, 426, 427. Do. by Van Schaick, 3,289-90. 2 do. by Jones & Varick, 337,8,9. 2 do. by Greeneleaf, 170, 2,3. 1 do. by Kent & Radcliff, 331,2,3. 2 do. by Woodworth & Van Ness, 131, 3, 4.) Their great object is to establish the rights and obligations of tenants of adjoining closes, respecting the making and mainT laining partition fences. These, where tl}eir proportion of the partition fence is assigned to them, or to those under whom they claim, by the feneft
2. An agreement, settling the proportions of the partition fence, would, doubtless, have the same effect as an assignment under the statute; though, in order to be effectual, it must he made between the parties to the suit, or those under whom they claim. (4 John. Rep. 414-15. & Mass. Rep. 97.) Ch. Justice Parsons, in speaking of these agreements, says, that, “When there has been no assignment, but only an agreement executed by the tenants of the adjoining closes, it may he a question whether such agreement shall have the force of an assignment, and if not, whether the tenant, whose cattle have escaped, can plead such agreement in bar of an action of trespass, or must have his remedy by an action on the agreement. It is true, that a curia claudenda does not lie, hut against a tenant, who is obliged by prescription to repair-. And, by analogy, an agreement between the tenants, making a division of the fence, each one mutually undertaking to repair Ms part, would not authorise one tenant, who had made or repaired the fence of the other, on his refusal, to recover of him the expense. But there appears to be no good reason, after an actual division by such agreement, if the cattle of one tenant escape into the close of the other tenant, through the defect of the fence, which the other had agreed to make and repair, why the-Owner of the cattle might not aver, that the party com
3. Prescription may form another exception to the common law. The country has now been settled long enough to allow of the time necessary to prove a prescription, (vid. 2 John. Rep. 357 ;) and ancient assignments • of fence viewers, made under the late colonial laws, and also ancient agree. ments made by the parties, may have once existed,.and be now lost by the lapse of time. (6 Mass. Rep. 97.)
It seems, then, that the owner of the cattle may aver, 1. That the party complaining, ought, bylaw, to make and maintain his fence, in which case he may prove the assignment or apportionment by the fence viewers; or, 2. That he is bound by agreement, to make and repair the fence, setting out the agreement in pleading, and proving it accordingly; or, 3. That he was bound by prescription, when he should regularly plead the prescription, and may prove it by ancient usage. (Id. 97, and vid. The opinion of Popham, J. in Nowell v. Smith, against the other Judges, Cro. Eliz. 709.)
These statutory provisions oblige a tenant to fence against such cattle only as are rightfully on the adjoining land. Beyond this, all rights remain as at common law; at which, says Ch. Justice Parsons, “ when a man was obliged by prescription to fence his close, he was not obliged to fence against
“ Against this position, the plaintiff has cited Fits. Abr. 298, note 6, where it is said that if A be bound to fence against B, and B against C, and beasts escape out of the land of C, into the land of B, and thence into the land of A, A shall not maintain trespass against C. But if A be bound to fence against B, and the beasts of B escape into the lands of A, and thence into the lands of D, a stranger, D may maintain trespass against B, who shall he left to his curia claudenda against A. By calling D a stranger, I suppose is meant, that neither A nor f) is honnd to fence against each other. For this distinction is cited, 10 E. 4. 7, and 36 H. 6. Fitz. Abr. Cur. Claud. Bar. 168.
“ As this distinction is not supported, but opposed by other cases, we have looked into the authorities cited. The 10 E. 4. 7, clearly proves that D may maintain his action. It is thus laid down by Choke, justice, “ If I have “ a close between the close of A, on one side, and the close of B, on the oth-- “ er side, which I ought to fence-; and through defect of fence, A’s cattle “ escape into my close, I can have no action, for it is through my own de- £-‘ fault. But if they pass through my close into the close of B, he may £t have an action against A, who shall be put to his writ de curia claudenda against me.”—The case of, 36 Ft. 6. is not reported in the year books, hut there is a short statement of it in Fitz. Air. Bar. 168. And I believe the distinction arose from a mistake of the case. It is thus: “ Note, that it was 'f‘ adjudged by the court, if my beasts go into the close of another [de autre]¡
“We therefore consider it settled at the common law, that the tenant of any close is not obliged to fence, but against cattle which are rightfully on the adjoining land. And accordingly, in the entries, where defect of inclosure is pleaded, the party pleading it claims some right or interest in the adjoining close, whence the escape was made, or justifies under those who have such right or interest. (Rast. Ent. 620, b. 622. 6 Inst. Cler. 677, 680, and the entries thee cited.)"
It was upon these principles that Rust v. Low & Stanwood, (6 Mass. Rep. 90,) was determined. This case settles directly the doctrine before advanced, that one is not bound to fence, except against such cattle only as are lawfully in the adjoining close ; and it also decides that those cattle cannot be said to be lawfully there,which have broken in, through the defect or absence íjf a fence, which the owner of a clpse adjoining, in another place, is bound
That Hie partition fence, between the plaintiff’s close and the locus in quo, was undivided, and that he and Trask were jointly and equally bound, by law, to make and maintain the same ; and the same as to the partition fence between the plaintiff and Low, who were jointly, &c. bound, by law, to make and maintain the same. That the same partition fences were, in all parts, not legal and sufficient; that the plaintiff put the cattle in his own close, to depasture, whence they escaped into Low's close, through the insufficiency of the partition fence ; thence into Riggs' close, for want of any partition fence between his and Low's closes ; and thence into the locus in quo, because there was no partition fence between Riggs and Trask. On demurrer, judgment was given for the defendants. And the Court took the ground, that, had the cattle escaped directly from the plaintiff’s into
Cattle, in the highway, are spoken of, by Ch. J. Parsons, as being in a place against which the tenant is obliged to fence, because such cattle are lawfully there; and he cites Wits. N.B. 298, note, to prove his position. But this should be understood with its proper qualifications. The note referred to quotes three authorities from the year hooks, viz : 15 H. 7. 17 ; 22 Ed. 4. 8, 49, and 10 Ed. 4. 8, as proving this, and this only, that if beasts escape, in view of the owner, by default of enclosure, as out of a highway, &c. fresh suit may be shewn in justification; but, if it docs not appear they were in view of the owner, fresh suit shall not be pleaded in bar, except the plaintiff alleges notice. These cases, evidently, suppose the owner travelling with his beasts, or, at least, that they are turned into the road merely to travel from one point to another, without his presence : but the owner has no more right to turn his beasts into the highway, or suffer them to run there, for the purposes of grazing, than he has to turn them into his neighbour’s cornfield. And this is also evident, from a pleading in Herne, 828. Indeed,
Have towns, or even the legislature, the power to interfere with common law rights, by authorizing cattle, &c. to run at large in the highway ? The question has never arisen in our Courts, though somq of our authorities look like taking it for granted. (12 John. 433. 19 id. 385.) And many towns, in practice, assume to exercise this right. Without examining the constitutional right of the legislature, to thus take the property of one man and give it to another, I imagine it will be found that no such power was ever intended to be given, by any act of the legislature of this state. The only existing statute, is the one before cited, (2 R. L. 131, s. 12,) which gives towns the power to direct the use and management of their common lands, and the times, &c. of permitting or preventing cattle, horses, sheep, swine, &c. to go at large. Now they have a much stronger statute in Massachusetts, which has been heldnot to have this effect. Their colonial acts, like ours, began with mentioning commons, spoke of cattle, &c. going at' large, on the commons; others, like our statute, of their going at large, gen~ erally, without confining it to commons ; and one act, passed there, regulated the manner in which horses might go at large, on the commons or ways of any town; and towns are authorized, in that state, to grant liberty for horses to go at large, and unfettered; and so in relation to other cattle. Yet, in Stackpole et al. v. Healy, (16 Mass. Rep. 33,) the Supreme Court of that state held, unanimously, that these expressions might all he satisfied,
