The facts appearing in evidence, and by the verdict, were, that Dodd and Myers were аdjoining land owners. Their lands had been separated by a partition fencе; but a-part of it had been carried away by high water, about a year befоre the trespass complained of, and it was otherwise dilapidated. Myers being aware of the condition of the fence, turned his cattle in upon his adjоining close, whence they escaped into the field of Dodd, and destroyed his corn; for which injury Dodd brought this action,, and recovered.
The question of Myers’s liability upon this statе of facts is reserved upon instructions, and upon a motion for a new trial.
Wе have a statute concerning enclosures, trespassing animals, and pаrtition fences (1 R. S. p. 292), the first section of which defines a lawful fence to be such аs good
Another statute provides that the board of commissioners of each county, by an order to be entered upon their records, shall direct what kind of animals shall be allowed to pasturе or run at large upon the ■ unenclosed lands or public common, within the bounds оf any township in their respective counties. 1 R. S. p. 102.
A question has been raised whеther the legislature has any power to grant the privilege of pasturing cattle upon unenclosed lands, without the consent of the owner; and this inquiry might be extеnded to commons and highways, as well as to other lands, the fee of which generally remains in the owner of the adjoining close, subject to the public eаsement
We do not think it necessary to decide this question at present, because, admitting the non-existence of the power in question, there are сertain purposes for which cattle may go at large — as when driven in teаms or droves — and in view of this fact, it is competent for the legislature to declare that an action shall not be maintained for a trespass committеd by them, in favor of the owner of lands not securely fenced. It may be regardеd as a kind of police regulation in respect to cattle, founded оn their well known propensity to rove. See Page v. Hollingsworth, 7 Ind. R. 317.
We have had statutes of this kind in forсe at least since-1824, and perhaps longer. These considerations аre sufficient to give an effective operation to the second section
Thе common-law rule, in the absence of any statute controlling it, is that the owner of cattle is bound to confine them upon his own lands. Williams v. The New Albany and Salem Railroad Company, 5 Ind. R. 111.—The Lafayette and Indianapolis Railroad Company v. Shriner, 6 id. 141.—Page v. Hollingsworth, supra
The judgment is affirmed, with 5 per cent, damages and costs.
This question was sought to he raised in Hoover v. Wood, ante, 286.
See, also, The Indianapolis, &c., Railroad Company v. Kinney, 8 Ind R. 402; Hoover v. Wood, ante, 286.