
    Israel Rust versus David Low and Zebulon Stanwood
    The statutes made by the legislature of the commonwealth are the foundation of all the obligations imposed on the citizens by law, to make and repair fences.
    The tenant of a close is not obliged to fence, but against cattle which are rightfully on the adjoining land.
    This country has now been settled long enough to allow of the time necessary to prove a prescription.
    This was a replevin of cattle. The defendants, as bailiffs of Abigail Trask, well acknowledge the taking and detaining them as damage feasant in the close of the said Trask.
    
    To this conusance the plaintiff pleads in bar, that he is seised of a close called Biscay Island, which is enclosed by a fence ; —. that to his said close are adjoining Trask’s close, the locus in quo, Riggs’s close, and also Low’s close ; — that Riggs’s close is also adjoining upon Trask’s close; — *and that Low’s [*91 ] close is adjoining to Riggs’s close ; —- that the partition fence, between the plaintiff’s close and the locus in quo, was and is undivided, and that he and Trask are jointly and equally bound by law to make and maintain the same ; — that the partition fence between the plaintiff’s and Low’s closes was and is also undivided, and that the plaintiff and Low are jointly and equally bound by law to make and maintain the same, but that the same partition fences are in all parts not legal nor sufficient; — that the plaintiff put the cattle into his own close to depasture, whence they escaped into Low’s close, through the insufficiency of the partition fence, thence into Riggs’s close, for want of any partition fence between those closes, and thence into the locus in quo, because there was no partition fence between Riggs’s close and the locus in quo.
    
    To this plea the defendants demur generally, and the plaintiff joins in demurrer.
    The cause was argued, at the last November term in this county, by Prescott and Andrews for the plaintiff, and Dane and Story for the defendants.
    
      Sketches of the relative Situation of the' several- Closes mentioned in the Plain-: tiff’s Bar:— _
    
      Rust’s Close, called Biscay island. Low. Riggs. Trask. Locus in quo.
    
    
      
      For the defendants, it was observed that the plaintiff having admitted the fact complained of, and having undertaken to justify, he was bound to show a clear title to every intent, and that he was himself entirely without fault. His justification is, that there was no fence between him and Low, and this was his own fault in the first instance; and that the fence was not kept up between entire strangers, who are bound only to fence against each other, even by iur own statutes, and at common law not bound at all.
    It is not alleged in the bar, that Trask was bound to make the lence between her and Riggs, and in excuse of a confessed trespass the Court will presume nothing.
    At common law, no man is bound to fence his close against his neighbor’s adjoining field; but every man is bound to keep his cattle within his own close at his peril; and an obligation to maintain a fence could only arise by covenant or prescription.  [ * 92 ] * Further, at common law, if a man be bound to make the fences of his close, this duty extends only as against the owner of the adjoining close, or some person having an interest therein, but not as against strangers; and therefore, if the cattle of a mere stranger escape into the close from defect of fence, trespass lies. 
    
    The common law on this subject is still in force in this commonwealth ; and the statutes of 1785, c. 52 and c. 53, have altered it only as between owners of adjoining closes, and, occupants under them,. Indeed, as to occupants, they were by the common law bound to enclose, wherever the owner was so bound.
    By the act of 1785, c. 52, occupants of adjoining closes, and none others, can compel the making of fences, and this only while the lands are improved. To the same purpose is the act of 1785, c. 53, respecting common fields, and the fences thereof, and the additional act of 1794, c. 38. By these statutes, it is a joint duty, to be enforced by either; but they may, as between themselves, dispense with a law made for their benefit. The first of these statutes repeals all other statutes on the subject.
    The statute of 1788, c. 65, § 3, which provides that every man, having his land legally fenced, may have trespass, or impound, &c., is merely affirmative, and affects the cases of lands legally fenced, and not the cases at common law, where lands are not fenced. There is nothing in this act which shows an intent to repeal the common law in other particulars; and manifestly its provisions apply only as between adjoining owners, and not strangers. For the construction of statutes, where they are in affirmance of the common law, see the authorities in the margin. 
    
    
      For the plaintiff, it was contended, that our statutes had virtually repealed the common law in this case; or rather that the English common law on this subject had never been adopted here. By our laws every man is bound to fence his close, not only against his neighbors, but against all the world. This law naturally arose out * of the situation in which our ancestors [ * 93 ] found themselves in this country on their emigration, and for a long time afterwards. For want of proper pasture land, it was absolutely necessary that the cattle should be permitted to go at large in the forests for subsistence ; and from the sparseness of the settlements, and the scarcity of inhabitants, it was impossible to watch them, so as to prevent their trespassing upon the unenclosed lands of others, the owners of which were therefore held to protect their enclosures by sufficient fences. Thus, as early as 1642,  it was ordained that no man should be liable to satisfy for damage done in any ground not sufficiently fenced, except for damage done by swine, calves, or unruly cattle, &c., and except also wilful and voluntary trespasses. And in 1662, it was enacted that, where any cattle should trespass on any propriety, not sufficiently fenced in the judgment of the fence-viewers, the owners of the fence, or of the land, should bear all such damages as were thereby sustained.
    From these ordinances of the colony there grew up a usage or common law of the country, which seems to be recognized by the provincial acts of 5 W. & M. c. 11, and 10 W. 3, c. 4. And by the statute of the commonwealth, 1788, c. 65, § 3, it is provided that any person injured in his mowing, tillage, or other lands under improvement, that are enclosed with a legal and sufficient fence, by swine, sheep, horses, or neat cattle, may have an action of trespass, &c., or he may impound the creatures, &c. The inference is irresistible, that if his lands are not so enclosed with a legal and sufficient fence, he must sustain the damage himself, and has no remedy against the owner of the cattle doing the damage.
    It appears in the case at bar, that the parties were jointly bound to maintain the fence between them. Of course one of the parties had no right to impound the cattle of the other, if the fence was insufficient. It is not, then, for the defendants now to say [ * 94 ] that there was not a sufficient fence between * the plaintiff’s land and that of Trash. It will be also admitted that Riggs could not have impounded the plaintiff’s cattle for escaping from Low’s into his land, because the fence between those closes was also insufficient, and the owners were jointly bound to maintain it. The plaintiff’s cattle were, then, lawfully in Riggs’s close; and Trash was bound to fence against any cattle, which were lawfully in the adjoining close. 
    
    If the law were not so to be considered, much difficulty and inconvenience would arise in the community. It would be making a distinction, equally idle and troublesome, between the cattle of the owner of the land, and the cattle of others, which the owner of the land had suffered to be in his close.
    The cause standing continued nisi for advisement, the opinion of the Court was delivered in Suffolk, November term, 1809, by
    
      
      
        Fitz. N. B 128. — 22 H. 6, 9.— Bro. Trespass, 345,439. — 16 H. 7, 14.— 13 Vin. Abr. Fences, A., cites Dyer, 372, pl. 10. — 20 Edw. 4, 10. — 6 Mod. R. 314.
    
    
      
      
        Salkwill vs. Milwarde, 22 H. 6, 23. — 22 H. 6, 7, 8. — Bro. Cur. Claud. 2. — Bro. Tresp. 145, 321, 439. — Fitz. Abr. Issue, 73, 127. — Fitz Cur. Claud. 1, 2. — Vin Abr. Fences, D. 4. B. 3. — Bac. Abr. Trespass, G. 2. —10 Edw. 4, 7. — Fitz. Ban 104, 168.— 22 Edw. 4, 49, b. — Bro. Distr. 56, 24. — Jenkins, 161 —16 H 7, 17 — Bro. Axowry, 135.— 2 Lutw. 1573, 1578. — Sir Fr. Leake's Case, Dyer, 365. — Dig by vs. Fitzherlert, Hob. 103. —Dovaston vs. Payne, 2 H. Black. 527. — l Freeman, 379
    
    
      
       1 Bl. Com. 89, 90. — 6 Co. 20. — 4 D. & E. 2. — Williams vs. Pritchard, 4 Co 1 —5 Venon's Case. — Rex vs. Parish of Burdeer, 10 Mod. 430.
    
    
      
      
        General Laws and Liberties of the Mass. Colony ,20.
    
    
      
      
        Fitz. N. B Cur. Claud 217.
    
   Parsons, C. J.

[After reciting the pleadings.] We are to decide whether the bar is, or is not, a sufficient answer to the conusance.

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, and to prevent them from escaping. And if they escaped, they might be taken, on whatever land they were found damage feasant; 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, yet he could not be compelled to fence, and the party injured by the breach of the agreement had no remedy, but by an action on the agreement. In the case of a prescription to fence, he could be obliged to fence by the writ of curia claudendá, sued by the tenant of the adjoining close, who might also recover damages by that writ.

When our ancestors first settled in this country, they found it uncultivated; and when closes were made by the settle [ * 95 ] ment and cultivation of the lands, there could be no * prescription to fence; and therefore the common law author izing the writ of curia claudendá, being inapplicable to the state of the colony, was never introduced. Provision respecting fences was early made by the legislature of the colony of Massachusetts Bay, which expired with the repeal of the first charter. After-wards the obligations to fence were regulated and enforced by laws passed by the legislature of the province of Massachusetts Bay. These laws continued in force until their revision by the legislature of the commonwealth ; and the statutes passed by this legislature are the foundation of all the obligations imposed on the citizens by law to make and to repair fences.

By the statute of 1785, c. 52, legal, sufficient fences between adjoining occupied closes may be made and kept in repair, through the whole year, at the will of either tenant, but at the equal expense of the two tenants, each tenant being liable to the charge of making half the fence. What shall be deemed a sufficient fence is defined by the statute; and if the tenants do not agree on the division of the fence, or if either neglects sufficiently to make or maintain his part, a remedy is expressly provided. Each town is to choose annually two or more fence-viewers, to be sworn to the faithful discharge of the duties of the office. And any two of these officers are authorized, at the request of either tenant, to divide the fence, or the line on which the fence is to be made, and to assign to each tenant his part, which he and the succeeding tenants are to make and maintain ; and also, at the réquest of either tenant, to decide whether the fence of the other is sufficient or not. And if either tenant, after such division and assignment, duly made in writing, and recorded in the town clerk’s office, shall neglect to make or maintain his share so assigned, the other tenant may do it, and may recover at law against the negligent tenant double the expense, as ascertained by the fence-viewers, with twelve per cent interest, if on notice and request it be not paid. This statute does not make void any written agreement respecting the making and repairing of fences.

* The legal obligations of the tenants of adjoining [ * 96 | lands to make and maintain partition fences, where no written agreement has been made, rest on this statute. But in this position are not included adjoining lands, which are not both occupied by the respective owners, nor lands enclosed in a general field or common pasture, nor a close adjoining to a highway. These cases may be governed by different rules.

An assignment pursuant to the statute imposes the same duty as would result from a prescription; and instead of a curia claudendá, one tenant may make and repair the fence belonging to the other on his neglect, and recover of him double the expense, with double interest. And instead of averring, in pleading, that a tenant has used by prescription to make or repair, in the technical form, it is sufficient to allege that he is obliged by law to make and repair and give the assignment in evidence.

When there has been no assignment, but only a written agreement executed by the tenants of the adjoining closes, it may be a question, whether such agreement shall have the force of an assignment; and if not, whether the tenant, whose cattle have escaped, can plead such agreement in bar of an action of trespass, or must have his remedy by an action on the agreement. It is true that a curia claudenda does not lie, but against a tenant, who is obliged by prescription to repair. And, by analogy, an agreement between the tenants, making a division of the fence, each one mutually undertaking to repair his part, would not authorize one tenant, who had made or repaired the fence of the other, on his refusal, to recover of him double the expense.

But there appears to be no good reason, after an actual division by such agreement, if the cattle of one tenant escape into the close of the other tenant, through the defect of the fence, which the other had agreed to make and repair, why the owner of the cattle might not aver, that the party complaining had bound himself by his agreement to make and maintain the fence, and that [ * 97] the cattle escaped * through his default. For if he had agreed to make and repair the fence, he ought by law to fulfil his agreement.

Prescription to fence is allowed at common law, as resulting from an original grant or agreement, the evidence of which is lost by lapse of time; and it is reasonable that the agreement produced should be as effectual as a presumption that it once existed, but is lost, arising from ancient usage. The country has now been settled long enough to allow of the time necessary to prove a prescription, and ancient assignments by fence-viewers, made under the late provincial laws, and also ancient agreements made by the parties, may have once existed, and be now lost by the lapse of time. It seems, then, that the owner of the cattle may aver, that the party complaining ought by law to make and maintain the fence, in which case he must produce the assignment by fence-viewers, or show that he is bound by agreement to make and repair the fence, which agreement he ought in pleading to set out; or that he was bound by prescription, when he should regularly plead the prescription, and may prove it by ancient usage. [See the very sensible and rational opinion of Popham, C. J., against that of the other judges, in the case of Nowell vs. Smith, before cited.]

Every person, then, may distrain cattle doing damage on his close, or maintain trespass against the owner of the cattle, unless the owner can protect himself by the provisions of the statute, or by a written agreement, to which the parties to the suit are parties or privies, or by prescription.

As no agreement or prescription is pleaded or alleged in this case, it is necessary to consider the extent of these provisions — whether they oblige a tenant, liable to make the partition fence, or a certain part of it, to fence against the cattle of strangers, or only against such cattle as are rightfully on the adj'oining land. And we are perfectly satisfied, that he is obliged to fence only as in the case of prescription * at common law. The manifest [ * 98 ] object of the statute was, to establish the rights and obligations of tenants of adjoining occupied closes, respecting the making and maintaining partition fences; and the rights of persons, not having any interest in either of the adjoining closes, remain unaffected by the statute, and are to be defined and protected by the common law. With this "view it is provided, that, after the assignments, neither of the tenants of contiguous closes are obliged to maintain the partition fence through the year, if they otherwise agree. And it cannot be admitted, that strangers to this agreement can lawfully claim any benefit from it.

But, in opposition to this reasoning, it is said, that by the third section of the statute of 1788, c. 65, no person injured in his land by the cattle of another, is authorized to maintain trespass quare clausum fregit, or to distrain the cattle damage feasant, unless his own land is sufficiently fenced. And from this section it is argued, that if the close of the party injured is not sufficiently fenced, he can distrain damage feasant neither the cattle of the tenant of the adjoining close, whence they escaped, nor the cattle of a stranger.

But we do not consider that this section is liable to this construction ; but that all the provisions of it, so far as they extend, are merely in affirmance of the common law. — By this section, a man injured in his close, which is sufficiently fenced, by sheep, swine, horses, or neat cattle, may have his action against the owner, or may distrain them damage feasant. But it cannot be supposed, when goats, asses, or mules, trespass upon his land, which is sufficiently fenced, that all remedy is taken away. It is evident that this section is merely affirmative of remedies existing at common law, from a consideration of the fifth section. By this it is enacted, that, in trespass or replevin, the party injured shall recover his damages, if the beasts escaped into his close through a part of his fence that was sufficient, although a part of his fence was insufficient.

[ * 99 ] * At common law, when a man was obliged by pre scription to fence his close, he was not obliged to fence against any cattle, but those which were rightfully in the adjoining close. But the owner of the cattle may avail himself of the insufficiency of the fence of the close injured, if he has an interest in the adjoining close, to authorize him to put his cattle there, as a right of way, a highway, a license, a lease, or a right of common.

Against this position, the plaintiff has cited Fitz. Abr. 298, note 6, where it is said, that if A be bound to fence against B, and B against C, and beasts escape out of the land of C into the land of B, and thence into the land of A, A shall not maintain trespass against C. But if A be bound to' fence against B, and the beasts of B escape into the lands of A, and thence into the lands of D, a stranger, D may maintain trespass against B, who shall be left to his curia claudendá against A. By calling D a stranger, I suppose is meant, that neither A nor D is bound to fence against each other. For this distinction is cited 10 E. 4, 7, and 36 H. 6, Fitz. Abr. Cur. Claud. Bar. 168.

As this distinction is not supported, but opposed by other cases, we have looked into the authorities cited. The 10 E. 4, 7, clearly proves that D may maintain his action. It is thus laid down by Choice, justice : — “ If I have a close between the close of A on one side, and the close of B on the other side, which I ought to fence, and through defect of fence A’s cattle escape into my close, I can have no action, for it is through my own default. But if they pass through my close into the close of B, he may have an action against A, who shall be put to his writ de curia claudendá against me.” — The case of 36 H. 6 is not reported in the year books, but there is a short statement of it in Fitz. Abr. Bar. 168. And I believe the distinction arose from a mistake of the case. It is thus: — “ Note, that it was adjudged by the court, if my beasts go into the close of another, [de autre,] which is adjoining to my close, [*100] * for the defect of the close of the other, [de Vautre,] and further go into another [autre] close of the other, [de Vautre,] that I shall not be punished, because I do not retake them, and put them again into my close, until reparation be made of the other close, because they would go again,” &c. Now, by mistaking the third close for a close of a third person, who, because of the defect of his own fence, could maintain no action against the owner of the cattle, the distinction arose ; but it is not well founded. — That I have given the true translation appears from Jenk. 4, Cent. Ca. 5. The rule, as there laid down, is, If A has green acre, adjoining to his own close white acre, which adjoins to B’s close black acre, which A ought to fence against, — if B’s cattle go from his black acre to A’s white acre, and thence to A’s green acre, this is no trespass, because A did not fence his white acre against B’s black acre. This seems to be the same case of 36 H. 6, stated in Fitz. Bar. 168.

We therefore consider it settled at common law, that the tenant of any close is not obliged to fence, but against cattle which are rightfully on the adjoining land. And, accordingly, in the entries, where defect of enclosure is pleaded, the party pleading it claims some right or interest in the adjoining close, whence the escape was made, or justifies under those who have such right or in terest.

Let us now examine the bar in the case before us. It is therein averred, that the plaintiff and Trask are jointly and equally bound by law to make and maintain the partition fence between their closes.

But we know of no such obligation imposed by law. The respective occupiers of two closes adjoining are bound, each one to make and maintain half the partition fence ; but unless the fence, or the line on which it is to be made, has been divided by a written agreement between the parties, or assigned pursuant to the statute, or by prescription, neither party is obliged to make or maintain any part of the partition fence.

* Indeed, if there existed a joint obligation to make [* 101 ] the fence, no legal effect would flow from it; for then each party would be bound equally to make every part; and if the fence was defective, each party would be chargeable with the deficiency; and upon the escape of cattle from either close to the other, through a defect in any part of the fence, the owner of the cattle could not allege the escape to be from the deficiency of the other’s fence.

However, it appears to us very immaterial whether there was, or was not, a sufficient fence between the plaintiff’s close and the locus in quo; for the cattle did not escape that way. They escaped from the plaintiff’s close into Low’s close. And it is not averred that Low’s partition fence was insufficient, but that the plaintiff and Low were jointly bound to maintain it, and that it was out of repair. The fence was, therefore, as much the plaintiff’s as Low’s, and the plaintiff is as much in default, on account of the deficiency, as Low. It does not appear that this fence had ever been divided, and therefore each party, at his peril, was bound to keep his cattle on his own land.

But we conceive it immaterial whether the cattle escaped into Low’s close through his default or not. The cattle thence escaped into Riggs’s close, through want of any fence. And it does not appear that Low and Riggs were obliged to make a partition fence If the cattle were rightfully on Low’s close, he was bound, at his peril, to prevent their escape into Riggs’s close; and when they did escape, a trespass was committed. Trask had not fenced her close against Riggs, and the cattle were by wrong on Riggs’s close; the owner of the cattle having no interest in that close, or any right to put his cattle there. And Trask was not obliged to fence against any cattle that had escaped from Low’s close to Riggs’s close. When the cattle escaped into her close from Riggs’s, it was a trespass, and her bailiff might lawfully distrain them damage feasant.

The bar is, therefore, bad, and no sufficient answer to the conusance of the defendants.

[ * 102 ] If, in fact, the cattle had escaped from the plaintiff’s close into Low’s, through the defect of Low’s fence, yet the plaintiff must fail in his replevin against the defendants, and may have his remedy against Low by an action of the case. Vide Cro. Jac. 665. Holbach vs. Warner. — 1 Salk. 335, Star vs. Rookesby.

By the Court. Plea in bar adjudged bad. 
      
      
        Cro. Eliz. 709, Nowell vs. Smith.
      
     
      
      
        Fitz. N. B. 297.
     
      
      
        [Spear vs. Bicknell, 5 Mass. 125. — Kent vs. Waite, 10 Pick. 138.— Odiorne vs. Wade, 5 Pick. 421.— Coolidge vs. Learned, 8 Pick.— Gayety vs. Bethune, 11 Mass. 533. — Simson vs. Coe, 4 N. H. 301. — But see note to Spear vs. Bicknell, 5 Mass. 125, and the argument for the plaintiff in Coolidge vs. Learned, — The first report of the English commissioners on real property, — 2 Tuck. Bl. 31 — 36, 266. — Ackerman vs. Shelp, 3 Hals. 125. — Arnold vs. Mundy, 1 Hals. 67. — Carson vs. Blaze, 2 Binn, 490,— Young vs. Collins, 2 Brown. Penn. 293.— Chambers vs. Furrey, 1 Yeates, 167. — Devereux vs. Elkins, 5 Dane, Ab 568. — 3 Dane, 254. — Ed.]
     
      
       10 E. 4, 7, 8. — 22 E. 4. — Fitz. Abr. Curia Claudenda, 2. — Jenk. 4 Cent Ca. 5.
     
      
      
        Fitz. N. B. 298, note.
      
     
      
      
        Rast. Ent. 620, b. 622. —6 Inst. Cler. 677 — 680, and the entries there cited
     