28 A. 286 | N.H. | 1889
"At common law the owner of a close was not bound to fence against an adjoining close, unless by force of a prescription; but he was at his peril to keep his cattle on his own close, and to prevent them from escaping; and if they escaped they might be taken on whatever land they were found damage feasant, or the owner was liable to an action of trespass by the party injured." Avery v. Maxwell,
Four of the plaintiff's cattle strayed from his pasture into Glover's adjoining field through Glover's insufficient fence. If they had gone across the field into C's adjoining land through C's insufficient fence, the law of the authorities is that the plaintiff would have been liable to C in trespass, and would have had his remedy against Glover. If they had been killed by falling down a precipice in C's land, the insufficiency of C's fence would not have made him liable to the plaintiff. In a certain sense, and for some purposes, as between the plaintiff and Glover, the cattle were rightfully in Glover's field. Roby v. Reed,
When Glover found the cattle in his field, he could lawfully have driven them back into the pasture without the plaintiff's consent, and against the plaintiff's objection; and thereafter he could have kept them out of his field by performing his own fencing duty, and compelling the plaintiff to perform his. Glover's right to drive them back arose from the necessity of the case, and not from the plaintiff's presumed consent. It was a duty as well as a right. If he had driven them north towards their pasture with due care, one of them might have strayed in another direction, and been killed by a locomotive on the defendants' road. Whether the defendants would have been bound to fence against them while Glover was carefully doing what was necessary to be done to get them out of his field, is a question that need not be considered. If, under such circumstances, his neglect of the fencing duty he owed to the plaintiff would impose upon the defendants a fencing duty that would aid him in avoiding some of the consequences of his own fault, the creation or transfer of fencing obligation in such a case would not sustain this action. Instead of driving the cattle back, Glover put them in his barnyard about noon, kept them there about half a day, turned them into the highway between sundown and dark, and drove them westerly in the highway across the defendants' road, and then northerly in the highway towards the plaintiff's house. It does not appear that he exercised due care, or that it was necessary for him to put them in his yard, or keep them there about half a day, or turn them into the highway between sundown and dark, or drive them towards the plaintiff's house. On the way one of them, an ox, escaped. Returning home after dark, Glover looked for the lost animal, but did not find it. While in the plaintiff's constructive, but in no one's actual, possession, it wandered from the highway across Glover's land to the defendants' road, where it was killed in the night by a locomotive, without any fault in the engineer or fireman. Where *151 it passed from the highway across Glover's land to the railroad there was no fence.
The case does not raise the question whether the defendants would have been bound to fence against the ox if it had been in the custody of Glover as bailee until it entered the railroad, and the fact had been found that he was properly exercising a right derived from necessity. The cause of action alleged in the declaration did not accrue from Glover's intervention, followed by his abandonment of the duty he undertook, properly or improperly, to perform. Noyes v. Colby,
The plaintiff, finding the ox where it had been killed, notified the defendants, and demanded compensation for his loss. The defendants' section-men, finding the ox dead and very much swollen, skinned and buried it, and informed the plaintiff of what they had done. By direction of the road-master they sold the skin, and deposited the money ($6) in the hands of a proper officer of the company, where it remains. By leaving the carcass to become a nuisance on the defendants' premises, the plaintiff compelled them to bury it. They were not bound to remove or sell the hide. Their removal and sale of it after the plaintiff abandoned it was lawful. The proceeds of the sale are to be disposed of on equitable principles, but not in this action of tort, which the plaintiff cannot maintain. Hoit v. Stratton Mills,
Judgment for the defendants.
BINGHAM, J., did not sit: the others concurred.