Lord v. Wormword , 29 Me. 282 ( 1849 )

Wells, J.

The plaintiff’s close is a tract of salt marsh, not fenced, the cattle of the defendants passed from the highway across a tract of woodland owned by Dependance Wells, and not fenced, thence across a salt marsh, not fenced, belonging to one Doyle, to the close of the plaintiff. The cattle, by a vote of the town of Kennebunk, were allowed to run at large in the highway, from which they passed on to the land of Wells.

At common law the tenant of a close was not obliged to fence against an adjoining close, unless by force of prescription, but he was, at his peril, to keep his cattle on his own close. Rust v. Low, 6 Mass. 90; Little v. Lathrop, 5 Greenl. 356.

The rights of the parties are to be determined by the provisions of the Revised Statutes, c. 30, § 6. This section provides a remedy for the injury done to the owner of the close, by an action of trespass or by.distraining the beasts, “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.”

The law now in force, is different from that of 1821, c. 128, $ 6, and 1834, c. 669, <§> 3.

To sustain the defence of this action, it must appear that the cattle were lawfully on the adjoining lands, that they escaped through the neglect of the plaintiff to maintain his part of the partition fence. It is not shown that the defendants had any interest in the close of Doyle, or any authority from him to put their cattle on it. If the plaintiff were bound to fence against Doyle’s cattle, it would not be inferred that he was also bound to fence against those of a stranger. Cattle are lawfully on an adjoining close, when they have a right to be there, by the consent of the owner or of one having an interest in it. Rust v. Low, before cited, where the subject is very ably discussed by Parsons, C. J.

The defendants had no right to require, that their cattle should remain on Doyle’s land. To exercise such right they must have had a title in the close, or justified under some one who had. And the same remark will apply to the close of Wells. For if Doyle were bound to fence against the cattle of Wells, so that he could maintain no action against the latter, for the escape of his cattle on to Doyle’s close, that obligation would not extend to the cattle of others, having no interest in the close. So also if Wells were required to fence against cattle running in the highway, and they should break into his enclosure, although he could maintain no action for the damage done, yet he could remove them, and guard against their ingress. The owner of the cattle could not claim to have them remain upon the close, because he has no interest in it. They are not rightfully or lawfully on it, and cannot be so, unless by authority of the person owning the close, who may be deprived of redress for any injury, which they have done, but no rights accrue to their owner against the tenant of an adjoining close.

The cattle of the defendants were not then lawfully on the land of Doyle or Wells.

Nor does it appear, that the cattle escaped on to the plaintiff’s land in consequence of his neglect “ to maintain his part of the partition fence.” This provision was intended to apply to those cases, where there had been a division of the fence between owners of adjoining lands. And until a division takes place, there cannot be said to be any neglect. There had been no partition of the fence between the plaintiff and Doyle, nor between Doyle and Wells. But the plaintiff could only be held liable for his own neglect, in maintaining his portion of the fence, between his close and that of Doyle, after it had been ascertained, by a division between them. No division having been made, no neglect could arise.

This construction has been put upon a statute in Massachusetts, which is nearly in the same words as our statute. Thayer v. Arnold, 4 Metc. 589; Sheridan v. Bean, 8 Metc. 284.

The defendants have neither shown that their cattle were lawfully on the adjoining lands, nor any neglect of the plaintiff to maintain his part of the fence. Failing in either of these positions, their defence fails entirely.

It is hardly necessary to add, that the rights of the owners of lands, adjoining highways, remain as they were at common law, unaffected by the statute. The case of Stackpole v. Healy, 16 Mass. 33, contains a full and elaborate exposition of them.

According to the agreement of the parties, the defendants are to be defaulted.