13 Me. 371 | Me. | 1836
The action was continued for advisement, and the opinion of the Court was afterwards drawn up by
As the law stood, prior to the separation, this action was maintainable. The cases of Low v. Rust, and of Stackpole v. Healey, cited for the plaintiff, are decisive upon this point. But the law as it then stood, has been changed. The statute of 1821, revised laws, ch. 128, § 6 provided, that no action of trespass, quart clausum fregit, should be maintained against the owner of neat cattle, breaking into a close from the high way or commons, where the fence of such close was not good and sufficient, provided such neat cattle were, at the time lawfully going at large on such commons or highways. The law however was left unchanged, with regard to cattle escaping from adjoining fields ; and this action might still have been maintained at common law, notwithstanding the statute of 1821. Little v. Lothrop, 5 Greenl. 356. Then came the statute of 1834, ch. 137. The third section provides, that no action of trespass shall be maintained against the owner of cattle, breaking into the inclosure of another, through an insufficient fence ; such cattle being lawfully on the opposite side thereof. In this predicament stands the case before us. The defendant’s cattle, being lawfully upon the opposite side of the fence, through the insufficiency thereof, broke into the plaintiff’s inclosure.
We have been referred to many cases, illustrating the principles upon which statutes should be construed, to which there is
It is urged, that if the statute, upon which the defendant relies, forbids the remedy sought in this case, that part of it is unconstitutional. If it had authorized one man to interfere with the lands of another, it might be liable to this objection. But a party is liable to an action, who enters himself upon another’s grounds, or who turns on his cattle. And if cattle, lawfully on adjoining lands, stray where they have no right to go, they may be driven off. Or the owner of land may exclude the cattle of others, by sufficient fences, and if these are violated, he may seize and impound cattle doing damage, or maintain trespass against their owners. It was for the legislature to determine what protection should be thrown around this species of property ; What vigilance and what safeguards should be required at the hands of the
We perceive nothing in the law, which violates or impairs the constitution ; and, in our judgment, the plaintiff’s action cannot be maintained.
Nonsuit confirmed.