
    (64 Misc. Rep. 430.)
    HARRISON v. McCLELLAN et al.
    (Otsego County Court.
    August 4, 1909.)
    1. Animals (§■ 97)—Trespass—Duty to Fence.
    Until a fence has been established by prescription, by agreement, or by action of fence viewers, landowners remain under their- common-law rights and liabilities, which require them to keep their cattle at home or make good the damage they do neighbors.
    [Ed. Note.—For other cases, see Animals, Cent. Dig. § 338; Dec. Dig. § 97.]
    2. Animals (§ 99)—Trespassing Animals—Parties Liable.
    Where, under a lease of a farm, both landlord and tenant were to furnish a certain number of cows and the products of the farm were to be divided, each party to pay for one-half of the cow feed and all expenses to be borne equally, both parties were as to such products and the cows tenants in common, and were both liable to an adjoining owner for damages through unlawful trespass of the cows.
    [Ed. Note.—For other cases, see Animals, Cent. Dig. §§ 350-353; Dec. Dig. § 99.]
    Appeal from Justice Court.
    Action by Harvey Harrison against J.. N. McClellan and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    George Wholleben, for appellants.
    W. Irving Bolton, for respondent.
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   KELLOGG, J.

This is an action to recover damages claimed to have been sustained by the plaintiff for the trespass upon his lands of the cattle of the defendants, whereby a large portion of plaintiff’s field of corn was destroyed. The justice before whom the case was tried rendered a judgment in favor of the plaintiff for damages and ■costs.

It is undisputed that the plaintiff and defendants McClellan were owners of adjoining farms, and that the McClellans had let their farms to the defendant Haines for the term of one year' by the contract in writing which appears in evidence. The lease provides that the first parties are to stock said farm with 21 cows and bull, reserving the right to dispose of any of them after November 1, 1908, and replace with same number. , Party of the second part agrees to put on said farm 8 good young cows, fresh in milk this spring. Second party accepts the cows, but does not acquire any title to the same, and cannot dispose of any of cows belonging to first parties. It is also provided that one-half of all the products of the farm are to be divided equally, each party to pay one-half of all the expenses and taxes, all milk dividends to be made out one-half to each party, and each party to pay for one-half of grain and feed for team and cows from March 1, 1908, to May 15, 1908. The closing language of the lease assists materially in its construction, so far as it relates to the legal duties and obligations of the several defendants to the plaintiff in this action. It says:

“We will sell the milk complete to A. & McK., if we can. If not, we are to raise calves and pigs. In case we do not sell the skim milk, we are to raise calves and pigs, each party to pay one-half of pigs, and, when the calves and pigs are sold in the fall, each to have one-half of the proceeds.”

It may be fairly inferred from the evidence that a dike or mill race formed a dividing line between the two farms. It clearly appears, however, not only from the evidence of the plaintiff, but from one of the defendants, that the exact line between the parties had never been established, no steps ever taken about dividing off the land pursuant to statute, and no agreement ever made for a division fence. One of the defendants testified that the only fence he ever knew of was a board fence, which the plaintiff says he repaired. The plaintiff also constructed a barb-wire fence about one-half the distance of the supposed line between the parties for the purpose of keeping out the defendants’ cattle. It is practically undisputed in the case that no division fence was maintained by either party, or that either occupant or owner had served a notice upon the other that he chose to let his land lay open. The evidence establishes the fact that the cattle of the defendants crossed over from the defendants’ land onto the lands of the plaintiff through the so-called board fence, and did much damage to plaintiff’s corn, by eating, destroying, and breaking down and trampling upon the same.

At common law a tenant of the close was not obliged to fence against an adjoining one, unless by force of prescription. Every person was bound to keep his own cattle within his own close, and he was answerable for all injuries which they did if they escaped from it and went upon his neighbor. 1 Cowan’s Treatise, p. 392; 3 Blackstone’s Commentaries, 385; Stafford v. Ingersol, 3 Hill, 38. In this case there is no evidence that fence viewers had located or divided any fence between the lands, or that there had been any location or division of any fence made by the parties; in fact, the evidence is that neither of the parties had knowledge of any such fact. The defendants were therefore under their common-law obligation to keep their cattle on their own lands. Angell v. Hill, 64 Hun, 633, 18 N. Y. Supp. 834. Every man’s land is, in the eye of the law, inclosed and set apart from another’s either by visible and material fences, or by an ideal, invisible boundary, and in either case every entry or breach carries with it some damages for which compensation can be obtained by action. Waterman on Trespass, vol. 2, § 873. By' common law it was as unlawful for the beasts of a neighbor to cross the invisible boundary line as it would be to overleap or throw down the most substantial wall. Cooley on Torts (3d Ed.) 684. At common law every person was bound, at his peril, to keep his cattle within his own premises, and if he failed to do so he was liable for their trespasses upon the lands of another, whether the lands trespassed upon were inclosed or not. Ingham on Animals, 258; 2 Am. & Eng. Enc. of Law (2d Ed.) 351; Angell v. Hill, 64 Hun, 633, 18 N. Y. Supp. 824; Phillips v. Covell, 79 Hun, 210, 29 N. Y. Supp. 613; Buford v. Houtz, 133 U. S. 320,10 Sup. Ct. 305, 33 L. Ed. 618.

The rule was not founded on any arbitrary regulation of the common law, but was an incident to the right of property. It is a part of that principle which allows every man a right to enjoy his property free from molestation or interference by others. It is simply the recognition of a natural right. Bileu v. Paisley, 18 Or. 47, 21 Pac. 934, 4 L. R. A. 840; Wood v. Snider, 187 N. Y. 28, 79 N. E. 858, 12 L. R. A. (N. S.) 912. It is therefore the correct rule of law that until a fence has been established by prescription, by agreement, or by action of fence viewers, the parties remain under their common-law rights and liabilities, which requires each to keep their cattle at home or make good the damage they do their neighbors. The liability for trespass arises out of a wrongful act or failure to perform the duty imposed upon a party so chargeable. That duty, so far as relates to the domestic animals, is to so restrain them as to prevent their going on the premises of another. This duty is imperative. Marsh v. Hand, 120 N. Y. 320, 24 N. E. 463.

The recovery against the defendants in this case was therefore supported, and clearly in accordance with substantial justice, unless the relation of the defendants McClellan was so qualified by the lease with the defendant Haines as to relieve them from responsibility. If this contention of the appellants is correct, then the motion for a nonsuit against the defendants McClellan should have been granted. But this case should be clearly distinguished from Van Slyke v. Snell, 6 Lans. 299, and Atwater v. Lowe, 39 Hun, 150, and cases cited. It was therein held that the owner of cattle is not liable for the damages caused by them while trespassing upon the lands of others, when the cattle ■ are in the possession and under the control of a tenant, to whom “both farm and cattle” had been leased for a term of years. It seems, however, that the decision of the court might have been different if the cattle had been in the possession of an agister, as his possession is more of the nature of an agent or bailee. Smith, P. J., however, voted for affirmance solely upon the authority of Van Slyke v. Snell, supra, and seems to question the justice of that rule. Atwater v. Lowe, 39 Hun, 152.

In the lease, however, between the defendants McClellan and the defendant Haines, the former were to furnish 21 and the latter 8 cows, the milk checks were to be divided, as well as the products of the farm, each party to pay for one-half of the feed for the cows, and all expenses to be borne equally. I do not coincide with the views of the respondent that the defendants were copartners, but have arrived at the conclusiqn that, as to the products of both the farm and the cows, the several defendants were tenants in common, and were therefore liable to the plaintiff for damages for any wrongful and unlawful trespass of their cattle.

It also appears by the evidence in the case that one of the defendants McClellan had knowledge of the fact that the cattle were trespassing upon the premises of the plaintiff and that they were doing damage to his corn. The case of Lettis v. Horning, 67 Hun, 628, 22 N. Y. Supp. 565, was an action where the contract provided that the defendant should have 20 cows now on said farm, one bull, etc. One K. was to work the farm under the contract, and take good care of the cows and stock. The milk, butter, and cheese to be divided between the parties. K. took possession of the farm, and of the 20 cows, and of the bull. It was held “that, under the contract between the defendant and K., the bull was not leased, but was in K.’s possession as bailee”; also held, if under the contract the defendant and- K. could be deemed tenants in common of the bull, the former was also liable. Lettis v. Horning, 67 Hun, 630, 22 N. Y. Supp. 565; Sheldon v. Skinner, 4 Wend. 525, 21 Am. Dec. 161; Oaks v. Spaulding, 40 Vt. 347, 94 Am. Dec. 404.

Marsh v. Hand, 120 N. Y. 315, 24 N. E. 463, was a case somewhat similar to Lettis v. Horning, supra. In that case one H. was sued as the owner and C. as the party working the farm on shares, and to whom under the contract between the parties the possession of a dangerous animal was given. In that case in his opinion Bradley, J., used the following language:

“He, Cumber, as well as the Hands, had an interest in the use oí the stock, and was liable for the injury resulting from the trespass upon the plaintiff’s premises; but, inasmuch as the defendants Hand had neither parted with the title of the stock left by them upon the farm, or leased it to Cumber, they were also liable for any trespass committed by such stock upon the lands of another. The relation of Cumber as the bailee, and his duties assumed with respect to it, did not have the effect to relieve them who were the general owners, from the liability.” Marsh v. Hand et al., 120 N. Y. 315, 320, 24 N. E. 403.

I have therefore reached the conclusion that this judgment should be affirmed, with costs.

Judgment affirmed, with costs.  