State v. Lamb

Battle, J.

We-think that there can be no doubt of the correctness of the opinion expressed by his Honor. The Act “concerning fences” (l Rev. St. c. 48,)requires, “ that every planter shall make a sufficient fence about his cleared ground under cultivation, at least five feet high, unless where there shall be some navigable stream, or deep water course, that may be deemed sufficient instead of a fence as aforesaid ; and the 42d section of the Act “concerning crimes and punishments,” (1 Rev. Stat. c. 34,) makes every person indictable for neglecting to keep and repair his or her fence during crop time, in the manner required by the Act concerning fences. What is a sufficient fence, and what kind of navigable stream, or deep water course is to bo deemed sufficient instead of a fence, within the Act, must be questions of law, because the interpretation of statutes, and the ascertaining of the meaning of all the terms employed in them are confided to the Courts. This duty they discharge by pronouncing what is the true construction of a whole statute, or the sense of any particular section, phrase or word, contained in "it, upon the facts found by the jury in any case arising under it. His Honor, then, did right in assuming to decide upon the sufficiency of the pond to answer, as a deep water course, instead of a fence. The enquiry remains, was the question of sufficiency rightly decided. We think it was. It is manifest from a view of all the provisions of the Act, which we are discussing, taken together, that its purpose is to prevent horses, mules, and other stock, not more than ordinarily addicted to mischief, from breaking into fields under cultivation, and damaging the crops, which may be growing in them, and also to protect such stock from being killed, maimed, or otherwise injured by the owners of the fields. To accomplish this purpose, a sufficient fence, at least five feet high, unless there be some navigable stream or deep water course that will answer instead of such fence, is required. The object is to keep out horses, hogs, and other stock. Can any fence, stream, or,water course, be deemed sufficient, that will not, under ordinary circumstances, secure the accomplishment of this object ? Surely not. Otherwise the Court must be guilty of the absurdity of pronouncing that to be sufficient in law which proved to be insufficient in fact.

It must be certified to the Superior Court, that there is no error in the judgment appealed from.

Per Curiam. Ordered to be certified accordingly.