37 Conn. 123 | Conn. | 1870
The evidence offered to prove that one of the horses in leaving the plaintiff’s close did not jump over the deficient part of the fence, but over the lawful fence, and eighteen inches above it, was properly admitted. It certainly tended to show that the animal was accustomed to jump fences, and was unruly. The objection that it was after the trespass had been committed was not well taken. No time had elapsed, from the time he jumped in, before ho jumped out, during which he could have learned to be unruly, nor had he any opportunity to acquire the vice.
The only other question raised upon the motion is, whether the judge properly ruled and charged that the word “ordinary,” in qualification of the word “fences” in section 12, p. 446, of the Revised Statutes of 1866, means the different kinds of lawful fences. This question involves a construction of that section of the statute. We are of opinion that the ruling and charge of the judge were correct.
The first section of the statute in relation to fences requires that the proprietors of land shall make and maintain sufficient fence or fences to secure their particular fields and enclosures, and prescribes what shall be deemed a sufficient and lawful fence. It is claimed that this section covers the whole ground, and regarded alone it would seem to require
The claim of the defendant was, that the term “ ordinary fences,” as used in connection with unruly cattle, meant lawful fences. This construction cannot be adopted for several reasons.
In the first place, such a construction would be inconsistent with the obvious purpose of the section. That purpose was to state certain exceptional circumstances under which the owner of land may recover damages for injury done in his inclosure, although Ms fence is insufficient. It makes four exceptions to the general rule, that there can be no recovery for damages for trespass by cattle where the fence is insufficient, and damage done by unruly cattle is one of them. There would be no reason for exempting unruly cattle if they were not to be deemed unruly unless they jumped lawful fences; for if they broke in over or through a lawful fence, the owner of them would bo liable for damages whether they woi’e unruly or not. “Ordinary” in such a connection moans common or usual, and it is obvious that the meaning of the word as there used is different from that of the word “ lawful" as used in other parts of the statute. And inasmuch as it is notorious that fences which are lawful when made are constantly, by settling and otherwise, becoming unlawful, and a large proportion of the fences of the state are not of lawful
It is perfectly apparent from the history of our legislation in relation to fences that it has never been the policy of our law to require any man to fence against unruly cattle. During the first few years after the settlement of the colony there was no law requiring individuals to fence their allotted lands. Tracts for cultivation were fenced off as common fields, and divided up among the settlers, who were each required to make a proportionate part of the common fence. To compel the performance of that duty, a committee was appointed in 1648 to view the fences and compel their erection and maintenance by the imposition of fines. In 1650 the duty was imposed on the townsmen or selectmen, and in 1662 on fence-viewers. Individual proprietors were at liberty to fence their allotments, either in or out of the common field, but there was no law at that time requiring them to fence their particular lands. As the proprietors came to fence their particular allotments, laws were made regulating such fencing at mutual expense where particular enclosures adjoined. . To the laws relating to that subject Mr. Ludlow, in the code prepared by him in 1650, added the following proviso : “Provided also, that no man shall be liable to satisfy for damage done in any ground not sufficiently fenced, except it shall be for damage done by swine under a year old, or unruly cattle which will not be restrained by ordinary fences, or where any man shall put his cattle or otherwise voluntarily trespass upon his neighbor’s ground. And if the party damnified find the cattle damage-feasant, he may impound or otherwise dispose of them.”
This provision was added to, and became a distinct section in, a subsequent revision, and that portion of it which relates to unruly cattle has passed, unaltered in any word or partdc
In 1666 it was ordered “ that all the inhabitants of this jurisdiction shall make and maintain sufficient fence or fences to secure their improvable lands against cattle of all sorts whatsoever, unruly cattle alone excepted. And what damage is done by cattle through the want or insufficiency of fence, (except as before excepted,) it shall not be recoverable by law.”
This provision also has passed through every revision from that time to this. It has been modified by leaving out the exception because contained in another section, but the principal provision has not been changed. It is the basis of the first part of the first section of our present statute in relation to fences.
What should be deemed a sufficient fence was left originally to the committee of seven, afterwards to the townsmen or selectmen, and afterwards to the fence-viewers. There was no provision of law at that time prescribing what should be a lawful fence. In 1702 a law was passed which prescribed that “ all five rail fence and stone wall four feet high, well and substantially erected, and all other fence, either rail, board, hedge, ditch, brook, rivers, creeks, etc., which in the judgment of fence-viewers shall be equivalent to said five' rail fence, shall be adjudged sufficient fence.” To this in 1732.was added the following: “And that such quick set fence as shall be accounted sufficient in the judgment of the fence-viewers to fence against ruly horses, neat cattle and sheep, shall be adjudged and accounted sufficient fence.”
These three provisions, constituting distinct sections of the statute relating to fences, were continued, with some modifications, but without material alteration; down to the time of the revision of 1821. At that time the revisors, pursuant to their plan of condensing and simplifying the statutes, embodied two of the provisions — that requiring all lands to
It is apparent from this brief history of the three original', provisions which now constitute the two sections we have-under consideration, that the common law doctrine, that every man is bound to take care of his cattle, has never been, abrogated in relation to unruly cattle in this state. This was. substantially determined by this court in the case of Barnum v. Vandusen, 16 Conn., 200. In that case the sheep of the-defendant entered the plaintiff’s land through his insufficient fence, and in order to subject the defendant the plaintiff' offered to prove that the sheep were unruly, and would not be restrained by an ordinary fence. The court admitted the-testimony, and the Supreme Court affirmed the judgment.. Judge Hinman, in giving the opinion, said: “ Taking and construing these two statutes together, as we think they ought: to be construed, upon the principle regarding statutes relating-to the same subject and having one object in view, we think: it manifest that the legislature did not intend that the owners-, of land should be compelled to fence against unruly animals, of any kind.”
The statutes of the state have not at any period given or contained any other test of unruliness except that contained in the section we are considering. There was a statute passed in 1687, providing that the owner of unruly cattle should pay double, damages if they trespassed, and were adjudged to be unruly by the selectmen, but that statute was soon after repealed.
We have then, to guide us in the construction in question, the following facts derived from a history of our legislation on the subject, viz : First, the clause was adopted into and became a part of the statutes of the state fifty-two years
A new trial is not advised.
In this opinion the other judges concurred.