Stewart v. Benninger, 138 Pa. 437

138 Pa. 437 | Pa. | 1891

OPINION,

Mb. Chief Justice Paxson :

According to the statement of the plaintiff the defendant kept a very voracious set of hogs. They were suffered to run at large without rings or yokes. “ They were of the slab-sided, long-snooted breed, against whose daily and nocturnal visits there is no barrier. They were of an exceedingly rapacious nature, and six of them, at one sitting, devoured fifty pounds of paint, thirty gallons of soft soap, four bushels of apples, and five bushels of potatoes, the property of the plaintiff. They raided the plaintiff’s spring-house, upset his milk-crocks, and wallowed in his spring; and for several years foraged upon his farm, having resort to his corn, potatoes, rye, and oat crops, to his garden, and to his orchard and meadow. They obtained an entrance by rooting out his fence chunks, and going under, or by throwing down the fences, or by working the combination on the gate. These hogs were breachy, and the plaintiff notified the defendant, several times, to shut them up, and the last time told him if he did not shut them up he would; and the defendant replied, ‘ Shut them up and be damned.’ ”

It may be this statement is exaggerated, yet the jury have found that they were troublesome hogs, and were without rings and yokes. That they did the plaintiff some damage is not disputed; but the defendant contends that the plaintiff was not entitled to recover anything for such damage, for the reason that he did not keep up proper fences. ■ We are unable to see what the question of fences has to do with the case. The act of 1705, 1 Sm. L. 70, expressly provides that “no swine shall be permitted to run at large without rings and yokes, under the penalty of forfeiting half the value thereof, .... Therefore, if any person or persons shall find on his, her or their lands, .... any swine, hog or hogs, shoat or shoats, or pigs, without rings in their noses, sufficient to prevent their turning up the ground, and triangular or three-cornered yokes or bows about their necks, and to extend at least six inches from the angular point or corner, sufficient to keep them from breaking through fences, it shall and may be lawful for him, her, or them, all such swine, hogs, shoats or pigs, to kill and take, and drive and carry away,” etc. We need not recite further the provisions of this act. It was not alleged that the defendant’s hogs had either rings in their noses, or yokes on their necks, as required by the act of 1705.

It was alleged, however, that the act of March 2T, 1784, 2 Sm. L. 96, entitled “ An Act to regulate fences, and to appoint appraisers in each township in the counties of Bedford, North-umberland, Westmoreland, Washington, and Fayette, and to encourage the raising of swine,” covers this case ; that it applies to the territory which was the scene of the raid of defendant’s hogs upon the premises and property of the plaintiff; and that under the provisions of said act plaintiff’s fences were insufficient. I find, however, that this act was repealed by its title by the act of April 11, 1862, P. L. 496. It follows, necessarily, that the act of 1784 can have no bearing upon the case. It is not easy to trace through one hundred fifty years all the legislation bearing upon this question, but, as no legislation now in force has been called to our attention which legalizes the running at large of hogs without yokes and rings, we may fairly presume it does not exist. And if an act can be found which justified such a thing, in the early days of the province when much of the country was a wilderness, it would be so far inapplicable to the present condition of things that 1 have little doubt the legislature would promptly repeal it. Yet, if such an act was in force and called to our attention, it would be our plain duty to sustain it, however objectionable it might appear to us. It is hard to imagine a more unneighborly act than permitting a lot of mischievous hogs to run at large. The defendant has shown us no statute which justifies him in doing this. No such right exists at common law: Gregg v. Gregg, 55 Pa. 227. The common-law remedy by an action of trepass is not repealed by the stray laws in force in this state: Mitchell v. Wolf, 46 Pa. 147. The opinion of Chief Justice Lowpj.H, in the case last cited, is an interesting review of the legislation of this state in relation to swine.

Judgment affirmed.