Lawrence v. Combs , 37 N.H. 331 ( 1858 )

Eastman, J.

At common law, a tenant or owner was not obliged to fence against an adjoining owner or occupier, except by prescription, but he was to keep his cattle on his own land at his peril. And if they escaped, they might be taken on whatever land they were found damagefeasant, or the owner was liable to an action of trespass by the party injured. And where there was no prescription, but the tenant had made an agreement to fence, he could not be compelled to carry out his agreement and make the fence ; and the party injured by the breach of the agreement had no remedy but by an action on the agreement. Norvel v. Smith, Croke Eliz. 709 ; Rust v. Low, 6 Mass. 94; Avery v. Maxwell, 4 N. H. 36; Deyo v. Stewart, 4 Denio 101; 3 Kent’s Com. 438 ; Dean v. Sullivan Railroad, 22 N. H. (2 Foster) 317; Glidden v. Towle, 31 N. H. (11 Foster) 168.

In case of a prescription to fence, the tenant could be compelled to fence by the writ of. curia claudenda, sued out by the tenant of the adjoining close, who could also recover damages by that writ. Fitz Herbert’s Natura Brevium, Cu. Claudenda 297; Rust v. Low, 6 Mass 94; Glidden v. Towle, 31 N. H. (11 Foster) 168.

But, by statute, the owners of adjoining lands, under improvement, are required to make and repair the partition fences between them. Kev. Stat., chap. 136, sec. 1. And after the fence has been divided, the owner of a close can sustain no action for damages done by horses or cattle breaking into his close, through defect in the fence which he was bound to make and repair, if they were rightfully on the adjoining land. Avery v. Maxwell, 4 N. H. 36; York v. Davis, 11 N. H. 241; Page v. Olcott, 13 N. H. 399.

Where there are adjoining closes, with an undivided partition fence, which each owner is bound to keep in repair, each is required to keep his cattle on his own land at his peril. Tewksbury v. Bucklin, 7 N. H. 518 ; Avery v. Maxwell, 4 N. H. 36 ; Thayer v. Arnold, 4 Met. 589; Little v. Lathrop, 5 Greenl. 356.

At common law, the tenant of a close who was obliged by prescription to fence, was not required to do it against any cattle except those which were rightfully in the adjoining close. Salkwell v. Milwarde, 26 Hen. 6, 23; 10 Ed. 4, 7 ; Fitzh. Curia Claud. 1, 2 ; Rust v. Low, 6 Mass. 99, 100; 3 Kent 438.

And the same rule has been held to prevail where statutes have been adopted regulating the rights and duties of adjoining owners, in regard to fences. In Rust v. Low, already cited, which is a leading American case upon the question, the point was distinctly decided that the tenant of a close is not obliged to fence except against cattle which are rightfully upon the adjoining land. In Avery v. Maxwell, 4 N. H. 37, Chief Justice Richardson says that “ it is well settled that the owner of a close is only bound to fence against creatures which are rightfully on the adjoining land.” And in Holliday v. Marsh, 3 Wendell 147, Chief Justice Savage also says, that “ it is certainly well settled that a man is not obliged to fence against any cattle but such as maybe rightfully upon the adjoining close.”

This doctrine is sustained by many authorities, among which may be cited Wells v. Horvell, 19 Johns. 385 ; Stackpole v. Haley, 16 Mass. 38; Lord v. Wormwood, 29 Maine 282 ; Hurd v. The Railroad, 25 Vt. 122; Dovaston v. Payne, 2 H. Blackstone 527; Cornwall v. Sullivan Railroad, 28 N. H. (8 Foster) 167.

From the declaration of the plaintiff it appears that he and the defendant were owners of adjoining closes; that the fence between them had been divided, and that the defendant’s portion of the fence was out of repair. Upon this state of facts, and according to the principles stated, there can be no doubt that the defendant would he liable, had the cattle that committed the trespass upon the plaintiff’s land been rightfully in the close of the defendant, for they went into the plaintiff’s close over that part of the fence which the defendant was bound to maintain.

But the cattle that committed the trespass were not the property of the defendant, nor were they upon his land by his permission; but they belonged to third persons, and strayed from the highway — where they do not appear to have been for any legitimate purpose — into the defendant’s close, and thence came upon the plaintiff’s land, and did the damage. Both the plaintiff and defendant could maintain their actions against the owners of the cattle for the trespasses committed; for, not being rightfully in the highway, it is immaterial what the situation of their fences was. They were not obliged to fence against wrongdoers. The authorities cited settle this position.

The cattle, then, being wrongfully upon the defendant’s land, whence they strayed upon the plaintiff’s, there is no principle of law upon which the plaintiff can recover, unless we hold that the defendant is liable by virtue of the twelfth section of chapter 136 of the Revised Statutes. That section is as follows: “ The party neglecting to build or keep in repair any partition fence which he is bound to maintain, shall be liable for all damages arising from such neglect; and shall have no remedy for any damages happening to himself therefrom.” ' The preceding sections of the chapter point out the manner in which the fences between the owners of adjoining lands under improvement shall be divided, and then follows the section quoted.

At common law, as we have seen, adjoining owners could not be compelled to fence; but each party was obliged to keep his cattle on his own land, and the object of the statute was to enable such owners to divide the partition fences, and to insure them to be maintained, so that their cattle might graze upon adjoining lands without restraint. All the provisions of the statute point to this one end. They relate to matters exclusively between the adjoining owners, and are obligatory upon no others. They impose no duties in which the public have any interest, or of which the public have any means to enforce the discharge. And we think that the intent of the twelfth section was to confine the liability for the neglect, to the damages done by the adjoining owners, or those in the rightful occupation of the lands; and not to make them consequentially liable for all the illegal trespasses that may be committed by others.

The plaintiff could probably have taken these cattle damage feasant, and if so, could have obtained satisfaction for the injury in that way; or he .could have brought an action of trespass against the owners, and recovered the damages sustained, and thus compelled the party directly committing the wrong to answer for the same. But to hold the defendant liable would be to pass over the immediate and direct cause of the injury, and thus depart from the general rule of law which gives damages as a compensation, recompense, or satisfaction, to a plaintiff for an injury actually received by him from the defendant, and not from others. 2 Greenl. Ev., sec. 253; Co. Litt. 257, a; 2 Bl. Com. 438; Rockwood v. Allen, 7 Mass. 256.

And we are confirmed in giving this construction to the statute, by considering the last clause of the section. Not only is the party made liable, by the section, for damages arising from his neglect to maintain his part of the fence, but he is to “ have no remedy for any damages happening to himself therefrom.” Now, if the first clause of the section was intended to create a liability upon the neglecting party for all the trespasses of wrong-doers, then, by the same course of reasoning, he could recover nothing for any trespasses committed-upon him by cattle that should escape from the adjoining close upon his land, however wrongfully they might be in such close ; for he is to have no remedy for any damages happening to him from the neglect to maintain his part of the fence. And such a construction would be to override the authorities cited, as establishing the well settled principle that a person is not obliged, to fence against cattle wrongfully upon the adjoining close, but may maintain an action for any trespasses thus committed. The legislature could hardly have intended to have imposed such a penalty; and yet we do not see why, if the construction contended for is to be applied to the first clause of the section, it does not necessarily follow that it is applicable to the last.

Our conclusion is, that there should be

Judgment on the report for the defendant.