55 Pa. 227 | Pa. | 1868
— The common law required every man to keep his cattle within his own close, and treated every intrusion by them upon another’s possession as a trespass. This was a general rule, and so it would doubtless be with us were it not for the operation of our Act of Assembly. True, it has been said a man may suffer his cattle to run at large without incurring any liability for their entry upon unenclosed woodland or waste fields. This is because the damages done are inappreciable, and therefore not to be noticed, or, as was suggested in Knight v. Abert, 6 Barr 472, because it is better to treat waste lands as common without stint to prevent vexatious litigation. It is not because such an entry is. not at law a trespass. And when the cattle of one man stray upon the cultivated or improved land of another, it is not to be doubted that an action of trespass might be maintained for the intrusion, if our statutes had not imposed upon landowners duties other than those required by the common law of England.
But at an early date changes were made by statutory enactment. The Act of 1700 (1 Sm. L. 18) enacted that, for preventing all disputes and differences that may arise through the neglect or insufficiency of fences, “ all corn-lands and grounds kept for enclosures within the said province and counties annexed shall be liable to make good all damages sustained thereby to the owners of said cattle.” * * * “ But if any horse, kine, sheep, hogs or goats, or any kind of cattle, shall break into any man’s enclosure, the fence being of the aforesaid height and sufficiency * * * then the owner of such cattle shall be liable to make good all damages to the owner of the enclosure, for the first offence single damages, and ever after double damages sustained. And any person having any unruly horses, mares or cattle that are not kept off by such fences as aforesaid, are ordered and shall be obliged to take effectual care to restrain the same from trespassing on their neighbor's’ enclosures.” Some of the provisions of this section were subsequently changed by the Act of 1729, and others still later. Thus, the required height of the fences was reduced. The requisition that they should be close at the bottom was taken away. New arrangements respecting swine were made, and the provisions relative to fence-viewers were altered. So new enactments have been made in regard to partition fences; but the remainder of the Act of 1700 is still in force. The owner of improved lands, or as they are called, corn lands and grounds kept for enclosures, must fence them. And this not solely for the purpose of restraining the cattle of the owner of the land. It is to shut out the roving cattle of his neighbors. This is made plain by three distinct provisions of the section. Thus, the owner of such lands may not drive off estrays violently, so as to hurt them, unless his grounds are fenced, but if fenced he may recover all damages caused by roving cattle.
Our statute was made when all our land was new, when it was more difficult to fence it than now. It was more convenient to enclose cultivated fields than pastures. The lands ploughed and planted were of comparatively small extent, while the cattle were suffered to roam through unenclosed woodlands and obtain pasturage there. These considerations may have induced the passage of the enactment of 1700. It is useless, however, to speculate upon this. It is enough that improved lands are required to be fenced, and that it is the law, that when it is the duty of a landowner to fence his land, he cannot recover compensation for damage done upon it by stray cattle, so long as his duty is neglected.
The judgment given upon the special verdict was therefore correct.
Judgment affirmed.