31 Vt. 540 | Vt. | 1859
Before the revised statutes of 1840, the occupier of land was bound to fence against neat cattle, and could
Adjoining proprietors have for many years, probably from the earliest existence of the State, with certain specific exceptions, been required to maintain division fences at their joint expense. Provisions have oxisted for establishing the division of the fence between the proprietors, and to enable one party, upon notice to and neglect of the other party, to build his proportion of the fence and recover the expense of the party in default, under the Statute. The statute of 1797 contains a provision subjecting the party in default, in regard to division fences, to the payment of “ all such damages as shall accrue to his or her neighbor, or neighbors thereby, to be appraised and ascertained by the fence viewers, they to appraise and ascertain the real value thereof; to be recovered with costs, in any court,” etc.
In the revision of the statutes of 1840 these provisions are substantially preserved, with verbal modifications. By the Comp. Statutes, chapter 94, it is provided that the party in fault shall pay all damages sustained by the other party, “to be appraised by the fence viewers.”
The statute of 1853 provides that the party in default in regard to building or keeping in repair his portion of the fence, “ shall be liable for all damages done to, or suffered by the opposite party in consequence of such neglect.” There is no provision for the intervention of the fence viewers in any way, in regard to these damages, nor is there any provision in regard to the mode of recovery, except that the party aggrieved may give ten days notice to the party in default, and thereafter proceed to build or repair the fence, and recover the expense of the party in default, and “ the full amount of damages arising from such neglect.” It is claimed this is the only remedy for the recovery of such damages. But we are not prepared to adopt this view.
We think too, that the liability can not fairly be restricted to injuries connected with the use of the plaintiff’s land, but that it will extend to all damages which may fairly be said to be the legal and natural consequence of the defendant’s omission. And if the jury had in this case been required to find what is alleged in the declaration in regard to the vicious habits of the animal, there could be little question that the injury to the plaintiff’s horses would fairly be considered the natural result of leaving the defendant’s part of the fence in such a state of want of repair that the plaintiff’s horses escaped into the defendant’s pasture.
But we do not regard it as indispensable to the maintenance of this action that the vicious habits of the animal should have been known to the defendant. But to rgcqver for this injury to the plaintiff’s horses, it should appear in some way that it was the natural consequence of the defendant’s neglect under the particular fact?
In the present case the law imposes upon the party the obligation of maintaining the portion of the fence through the defect of which the injury happened. The obligation and the liability are the same as if the duty were created by contract or by prescription, which is but one form of proving a contract or duty. We think, therefore, that all damages which the defendant might reasonably have anticipated might follow from his omission, are recoverable here. But as the present case went to the jury, it is evident no such question was taken into account by them. The charge made the defendant liable for damages in any way resulting from the escape of the horses. And we are not prepared to say that it can be determined, as matter of law, that the injury in question was one which might fairly be anticipated by one knowing the facts. That seems to be matter of fact. The law has established no rule upon the subject. The case of Powell v. Salisbury, 2 Younge & Jervis 391, where damages were allowed to be recovered where the plaintiff’s horses escaped into the defendant’s land through defect of fences which he was bound to repair, and were there killed by the falling of a haystack, is most analogous, perhaps, to the present, but by no means in point. So where the chain cable was warranted and through defect of construction broke, and the anchor was lost, it was held the value of the anchor so lost might be recovered; Borradaile v. Branton, 8 Taunt. 585; see also 1 Smith’s Lead. Cases 132, b We think this question must be settled by the jury.
We are not able to find that the remedy against a party for consequential damages resulting from his omission to maintain his portion of the division fence, has ever in this State been made dependent upon the other party having built a legal fence on his
When the party in default has built no fence at all it may possibly merit a different consideration. It might, in such case, be regarded as negligence in the other party to turn in his cattle until he had proceeded to build the fences himself, under the staU ute. But where the party proceeds to the performance of the duty, and does it so defectively that an injury occurs to the other party, we think, under existing provisions of the statute in this respect, he is liable, and in this form of action.
Judgment reversed and case remanded.