Webber v. Closson

| Me. | Jul 1, 1852

Appleton, J.

— The parties in this suit were occupants of contiguous fields. The fences between them had been maintained jointly and without any assignment under the statute provisions relating to fences. The plaintiff’s sheep, being rightfully on his own premises passed over into the adjacent lands of the defendant by whom they were impounded. The plaintiff thereupon commenced his action of replevin.

By the common law every man is bound at his peril to keep his cattle on his own land. As is well observed by Beardsley, C. J., in The Tonawanda R. R. Co. v. Munger, 5 Denio, 259, “fences were designed to keep one’s own cattle at home and not to guard against the intrusion of those belonging to other people.”

The common law was changed in this State by the statute of 1834, c. 137. The decisions of this Court, in Gooch v. Stephenson, 13 Maine, 371, and in Rice v. Eastman, 14 Maine, 419, were based entirely upon the provisions of that statute. By the R. S. all preceding legislation on this subject was repealed and the rights of parties remain as at common law, except so far as they may be modified by their provisions.

At common law the plaintiff could not maintain this action. Whether it is now maintainable depends upon the construction of R. S. c. 30, § 6, which authorizes an action of trespass against the owner of the beasts or the distraining of them or any of them doing damage “ provided that if the beasts shall have been lawfully on the adjoining lands and shall have escaped therefrom in consequence of the neglect of the person who had suffered the damage to maintain his part of the partition fence, the owner of ■ the beasts shall not be liable for such damage.” No assignment had ever been made of the partition fences between these parties. No particular portion therefore belonged to the plaintiff or defendant to keep in repair. Either party was at liberty under the provisions of R. S. c. 29, to procure a division of the partition fences and an assignment to each of the portion to be by him repaired and kept in repair. Until this be done there can be no neglect by any one “to maintain his part of the partition fence,” for he has no part specially designated and set apart for him to keep in repair. This section presupposes a division and an assignment and that the party suffering damage has neglected to keep in repair the part assigned him, in which case alone “ the owner of the beasts shall not be liable for such damage.” The language of this section is nearly identical with that of the statute of Massachusetts on the same subject, and this view is fully sustained by our own decisions as well as those of that State. Lord v. Wormwood, 29 Maine, 282; Thayer v. Arnold, 4 Met. 589; Sheridan v. Bean, 8 Met. 284. It follows therefore that the plaintiff cannot sustain his action. By the agreement of parties he is to be nonsuit. Plaintiff nonsuit.

Shepley, C. J., and Tenney, Wells and Rice, J. J., concurred.