25 Barb. 9 | N.Y. Sup. Ct. | 1856
It is not denied that the defendant’s cattle entered upon the plaintiff’s land, or that the plaintiff had sustained damage thereby. - This, at the common law, would have entitled the plaintiff to recover. For it is only by statute, that a man is required to protect his land by fences. (See The Tonawanda Rail Road Co. v. Munger, 5 Denio, 259.)
The defendant had chosen to let her land lie unfenced. This she had a right to do, and, doing it, she was excused from any obligation to make or maintain any part of the division fence between her and the. plaintiff. (1 R. S. 353, § 30.)
But the plaintiff, if he would protect himself from injury, or have a right of action for any damage he might sustain, was bound to maintain a fence in conformity with the town regulation. The electors of each town are authorized to make such rules and regulations as they may think proper 11 fop ascertain
It is due to the fame of the revisers to notice, that the section just quoted is not their production. Nothing half so clumsily or obscurely expressed ever came from their hands. The section was engrafted on the article that had been reported, while on its way through the legislature. It is one of those enactments which Lord Coke describes as “ penned or corrected, on a sudden, by men of very little or no judgment in the law.” I am not quite sure that I comprehend it; but if I have- been able to\ discern its meaning, the section constitutes a statutory bar to. )j every action brought to recover damages for injuries done byJj cattle entering through a defective fence, which the party complaining is bound to maintain, in any town where the electors have prescribed what shall be deemed a sufficient fence. This, construction of the statute is, of course, fatal to the plaintiff’s cause of action.
Having come to this conclusion, I have not deemed it necessary to discuss at length the validity of the statute which authorizes the electors of a town to determine the times and manner in which horses, cattle and sheep shall be permitted to go at large on highways. It is enough to say, that I have not much doubt of its constitutionality. The statute has been in existence since 1788 at least. Lands occupied as highways may well be deemed to have been acquired with reference to the
It cannot with truth be said that a by-law, like the one in question, takes the property of one man and gives it to another, or even to the public, without compensation.”
I think the judgment of the county court should be affirmed.
Harris, Watson and Gould, Justices.]