
    
      Thomas Mooney vs. Edward Maynard.
    
    That the owner of land cannot impound neat cattle taken damage feasant in hi* iuclosure, unless the portion offence which he is bound to repair is legalfence.
    That the specific provisions of the statute upon this subject are inconsistent with, and repeal, the common law, at least, so far as regards the right to distrain. damage feasant, in a case not warranted by the statute.
    This was an action of replevin for one hrindle steer, and one red steer, distrained and impounded at a place in St. Albans, called the Sumner farm-, to which the defendant avowed, justifying the taking and impounding the steers damage feasanton said farm, he being seized and possessed of the same as tenant under David Stevens, Jr. the owner in fee. To this the plaintiff pleaded that, at the time when he owned and possessed a certain tract of land adjoining the westside of said Sumner farm, cailedlotNo. 11, (which land was lying common,) the steers were feeding and depasturing upon said common land of the plaintiff,and, against his will, escaped into the Sumner farm through the defect of the outward or surrounding fence, which it was the duty of the defendant to uphold St keep in repair. To this there was a traverse, and issue to the jury.— On trial in the County Court, the plaintiff showed an actual sei-zen and possession of lot No. 11, under color of title, commencing in 1815, and continued ever since. It appeared that the plaintiff’s farm lies chiefly on the east side of the stage road, and the Sumner-farm lies chiefly on the west side of the east street in St. Albans, and about three fourths of a mile east from plaintiff’s farm; that an open road or highway passes from the stage road -to the east street, about one hundred rods north of the plaintiff’s land, and another about one half mile south of the plaintiff’s land; that fences were erected and upheld on the sides op these roads the whole length of each; .that, between these roads, and in the rear of the farms on said stage road and east street, is a tract of wood-land belonging to different owners, which is separated by fences from the cleared lands of the several farms aforesaid, except that the plaintiff has a pasture of about twenty acres, separated by fence on the west side thereof, from the rest part of his farm, and lying partly upon lot No. 11 ; the rest of which lot is wood-land, and extends about one hundred rods east of said pasture to the improved land on the said Sumner farm, which pasture has never been fenced, except on the west side, as aforesaid, but lies open to the whole tract of said wood-land of the plaintiffs and others; that the plaintiff, for several years, has used this as his ordinary pasture for cattle ; and that the owners of the other farms have not turned their cattle into these woods,'except in times of extreme drought or scarcity of feed — And the steers in question, being turned upon this pasture, passed through said open woods to the Sumner farm, and did damage to the crops of the defendant, breaking the division fence between said farm and lot No. II. It appeared that this fence was built more than twenty years ago by the owmers of the Sumner farm, by whom it had always been supported previous to the impounding of said steers, ;at which time the defendant called on the tenant of the plaintiff ■to assist in repairing said fence, which the latter refused.
    Evidence was introduced on the part of the plaintiff to show that said fence was not sufficient to answer the statute-description of a lawful fence, nor to stop ordinary neat cattle ; and on the part of the defendant, to show that said fence was sufficient /or the latter purpose.
    The court charged the jury, that lot No. 11 and the Sumner farm ought to be considered as adjoining lands, within the meaning of the statute ; and that it was the joint duty of the plaintiff ■ and defendant to support the fence in question. But that, asno demand or request had been made on the defendant to build or repair his portion of said fence, the defendant had no right to itn pound the plaintiff’s cattle, unless said fence was lawful and sufficient within some of the definitions of the statute ,• which' were repeated" and explained by tlie court. Whereupon, the jury returned a Verdict for the plaintiff. The defendant excepted to the charge of the court, and exceptions Were allowed, and the cause removed to this court on á motion for a new trial, foündéd ota said exceptions.
    
      Mr. Smith, in support, of the ¿notion. It is contended, on the’ part of the defendant, that, by the common law, if owners of cattle suffer them to gó upon the land of another, they aré liable to make good the damage, Without any regard to' the condition of the fences, (except in cases where there may be'some usage or agreement to the contrary,) and he, who receives the damage, may either distrain or bring" an action of trespass. — 5 Bac. Ah. 179.— 6 Mass. R. 9Ú, Rust vs. ttow et ais. The statutes of this state do not repeal or affect the remedies existing at common law. The' statute gives to' every person the right to impound cattle found’ damage feasant, or doing damage, in his enclosures, without any reference to the Condition of the fences. — See Stat. p. 450, s. 3. The provisions of the 2d‘ section of the act relating, to fences and' fence-viewers (p. 446.) only gives to the aggrieved party the privilege of making the whole division fence at the expense of the party neglecting ; but does not make it his duty so to do ; nor does' the neglect to avail' Himself of this provision of the statute, take aWay the right to distrain. The provision of the 8th section of the act' relating to pounds, estrays, and lost goods (p .452,) applies' exclusively to cases where the owners of the creatures are un-' known, and has nothing to do with the present question. The fence in question was a division fence between the close of the' píaintifi and the close of the defendant, and the plaintiff w>as as' much in fault on account of the ruinous condition of the fence as the defendant; consequently he was bound to keep his cattle on his-oWn land.
    
      Smalley and Adams, in support of the verdict. The common* law, relative to distress, is not applicable to the situation and cir-*' cumstances of this country, and has never been adopted in this state. No act’of the legislature, no adjudication of any of our Ciourts, has ever recognized the common law on this subject. Its maxims would be absurd in reference to the condition of the early settlers of this country, and repugnant to the whole system of husbandry in this state. Further': our Legislature has enacted statutes on this subject, in the face of which, to adopt the common law would be to render almost every clause, word, and sentence of those statutes superfluous,void and insignificant. The 7th 8th and 9th sections of the act relating to pounds, (R. Stai. p. 452-3) passed March 2,1797, and the 7lh section of the act in addition, passed in 3806 ■(stat. p. 457) and the act in addition to the same, passed 1821, (stai. 459, JVo. 6.) recognize the existence of rights and duties of owners of cattle, &c. wholly unknown to the'common law. The provisions of these sections are obviously inconsistent with the right to distrain neat cattle, unless when taken on lands inclosed by a legal fence, as defined by the statute relating to fences and fence-viewers. — Stat. sec. l,p. 446. — By the 3d section of the act of 1797, relating to pounds, &c. it is made lawful for any person toimpound any swine, neat cattle, sheep, or other creatures that shallbe found damage feasant in his 'enclosure. By the term enclosure, the Legislature understood a piece of land 'surrounded by a legal fence. The terms enclosure and legal fence, are, in our statute, synonymous. This is evident from the wording of the 9th section of the same statute. If this is the correct reading of the statute,theLegislature most clearly intended to abridge the right of distraining-damage feasant at common law.If not,why give the right of distraining creatures damage feasant in inclosures, when the right existed at common law,whether the premises were fenced or not ? By the 7th section, it is enacted that, if the owner of any creature impounded agreeably to the provisions of the 3d section be unknown, after public notice, &c. it may be sold to pay the damages, &c: By the 8th section, it is provided that nó sale shall ■be made, until the fence, inclosing the premises from which such creature was taken, be found legal by two fence-viewers. This provision of the statute, it will be noticed, deprives the owner of the land of any remedy when tire owner of the creature is unknown, unless the fence-viewers shall adjudge, that the fence inclosing the premises is legal and sufficient, No remedy could exist on the principles of the common law by action of trespass, because the person, against whom the action is to be bronght, is unknown. Can it be supposed that the Legislature intended to give the owner of the premises a remedy by distress, when the owner of the creature is known, which is expressly taken away when he is unknown? By the 9th section, the owners of horses, which are permitted to go at large on the commons, are expressly made liable for whatever damage they may occasion, to any inclosure, though the fence be. insufficient. Why should the Legislature, by express statute, give to the owners of the premises the right to impound horses damage feasant, though the fence was insufficient, if the right, of impounding previously existed in all cases ? Taking these different provisions in connexion, it would be charging the Legislature with tfie most absurd trifling,. to extend the authority to impound given in the 3d section of the act relating to pounds, Sic. beyond the cases of cattle, &c. taken doing damage in inclosures made by legal fence j but if, by the term inclosure, we understand- premises surrounded by legal fence,the provisions of the statute are consistent and salutary. It is evident, from the facts of the case, as stated in the hill of exceptions, that lot No. 11 is open and vacant land within the meaning of the 2d section of the ■ statute relating to fences,&c. — st«t.446;and the plaintiff is,therefore., under no obligation to build or repair the fences between his unimproved lands and the cultivated fields of the defendant.Nor is he bound to restrain his neat cattle from running at large, provided, they do not break: through inclosures made by legal fence.
   Hutchinson, J.

delivered the opinion of the Court. This case has lain with. the. court for consideration these two years. Some difficulties, have arisen from the. shape in which the questions are presented in the bill of exceptions, and some from the importance of giving a right construction to the statute, which contains. provisions inconsistent with the common law. Two members of the court,not, with us at the first argument,have heard the arguments of this term, and we have arrived at a decision in the cause.

It. seems that fences by the sides of four roads that cross each ' other at right angles, inclose a large tract of land, owned by. djf-ferent people; intlie centre of which isalarge piece of woods,surrounded by[the back fences of the several farms,into which,'as a large common,the several owners turned in their cattle in times of drought and scarcity of feed. That the defendant’s farm lay east of this wood,and the. plaintiff’s farm lay west of it.The plaintiff at the west end of the woods, has a clearing of twenty acres used as a pasture,and not separated by any fence from the piece of woods. The defendant, and those under whom he claims, have supported the fence all the way upon the west side of his inclosure, and adjoining the woods, for twenty years. This fence was out of repair, and the plaintiff’s steers went from said pasture through the woods, into the inclosure of the defendant, and did damage. The defendant impounded them, and the plaintiff has brought his writ.of replevin. The defendant has avowed the taking,and justifies on the ground the steers were doing damage. The plaintiff replies that his steers were feeding in his said pasture, and escaped against his will, &c. and went into the defendant’s said inclosure, through the defect of the fence which it was the duty of the defendant to repair. This was traversed.

The exceptions, upon which the ease is brought up to this court, were so inattentively drawn, that neither the testimony referred to, nor the charge of the court, seem very nearly allied to the issue, at least, in some parts thereof. The judge is made to charge as if deciding the weight of evidence when instructing the jury upon the liability of the plaintiff to maintain half of the fence through which the steers passed to do the damage complained of. But, as the instructions upon that point were in favor of the defendant, and the plaintiff obtained a verdict, the defendant is not now at liberty to complain of those instructions.

The only part of the instructions to the jury, which would authorize a verdict for the plaintiff, was, that which decided that the plaintiff was entitled to notice from the defendant to make his half of the fence, before his cattle were liable to be distrained damage feasant. This the court consider correct. More than this might have been correct. The jury might have been left at liberty to find the defendant liable by the analogy of prescription, to maintain the whole fence, if they believed that. the defendant, and those under whom he claimed, had upheld the same fence for twenty years, as stated in the testimony. But, surely after so long a support of the fence without charge to the plaintiff, he must not have his cattle impounded before he has notice of a claim that he should make one half of the fence. This we may say with confidence, if the provisions of our statute are to govern.

Smalley and Adams, for the plaintiff."

J. Smith, for the defendant.

But the defendant contends that the statute provisions are.not repugnant to the common law, but are cumulative remedies, and in affirmance of the common law \ and a case is cited from the 6th of Mass. R. 90, Burt vs. Low et al., which shows that the court in that state, consider the common law in full force, notwithstanding their statute. Should we follow that decision it would efiect a great and important change in the concerns of keeping cattle. The cattle of many persons, especially the cows of poor persons, in all parts of the state, have always been permitted to run upon the highways and commons; no man presuming to take, them up damage feasant, unless his own fences would stand the test of the law. And this practice is well warranted by our statute, the provisions of which are so various and extensive, and form such an entire system upon the subject, it must have been intended to supercede the common law.

We must not be understood to mean, that a man who might distrain and impound, might not, instead thereof, commence his action at common law. But we do mean, that a man who- could not lawfully distrain and impound, by reason of the defect of the fences, which he ought to keep in repair, cannot maintain an action at common law for the same injury: nor can a man distrain as at common law, unless his part, at least, of the fences is in such repair as the law requires.

. These provisions of the statute are particularly noticed in tire-argument of the plaintiff’s counsel, and need not be repeated by the court.

The judgment of the County Court is affirmed.  