Raub v. Kinney , 17 N.J. Misc. 19 ( 1938 )

Kóseberry, D. C. J.

This case having been heard before this court to recover two penalties, one for the running at large off the premises of the defendant, being the owner and keeper of a colored hull with horns and on the premises of the plaintiff on or about September 8th, 1938, under the provisions of Devised Statutes of New Jersey, 1937. R. S. 4:21-12. The penalty is $100. Also to recover a like penalty for another bnll without horns, owned and kept by the defendant off his premises and fonnd upon the premises of the plaintiff under the same statute.

The common law requires every person to keep his cattle on his own land and not to trespass on the lands of other persons. Damages alone being the limit of compensation.

As farm lands became more cultivated and the produce more valuable, the legislature passed a law to provide the maintenance of boundary fences between adjoining owners of cultivated lands if the owners could not agree upon a division of boundary fencing. The statute in the present case is a penal statute and must be strictly construed. The plaintiff must clearly bring his case within the statute to recover. The statute applies to bulls running at large and not cows. Much stress is laid on, when a calf becomes a bull. A male calf passes from a calf to bull, while a female calf becomes in turn a heifer and then a cow.

From the evidence in this cause as submitted before me and from the facts, it is my judgment that the colored bull with horns was a bull within the statute, owned and kept by the defendant and was suffered to run at large off the premises of the defendant and found upon the premises of the plaintiff in violation of the provision of the Revised Statutes, 1937 (R. S. 4:21-12) by which a penalty of $100 was incurred under the statute.

It is hereby ordered on this 28th day of December, 1938, that a judgment of $100 and costs of suit be entered in favor of the plaintiff and against the defendant on the penalty on the first count in the complaint, and that a judgment of no cause for action be entered in favor of the defendant and against the plaintiff on the second count in the complaint.