
    SUPREME COURT.
    John Atwater, appellant, agt. Lydia A. Lowe, respondent.
    
      Trespass — Responsibility of owner of cattle which hare been leased for a term of years, for the trespass of such cattle while in the custody of the lessee.
    
    
      ' The owner of cattle leased them, together with her farm, for a term of years, for a money rent. The cattle, when in the possession of the lessee, committed trespass upon a neighbor’s lands. Action was brought for the damage done by the trespass against the owner of the cattle:
    
      ..Held, that the owner was not liable for the damage done by the cattle while trespassing; that the owner, having lost the control and possession of the cattle, and not being able to gain possession or obtain control of the cattle, is not responsible for damage caused by them (Van Slyck agt. Snell, *6 Lans., 299, followed and distinguished).
    
    
      Fifth Department, General Term,
    
    
      January, 1886.
    This is an appeal from an order of tbe county court of Allegany county, granting a new trial
    Tbe facts are sufficiently set forth in tbe opinion.
    
      Bichardson & Smith, for appellant
    It is a well-establisbed rule of tbe common law, that the owner of cattle is liable for ■any trespass committed by them, irrespective of any question of negligence (3 Bile. Com., 211; Ellis agt. Loftus Iron Co., 11 Eng. Rep., 217). This rule has long been recognized and: adopted in this state (19 Johns., 384; 5 Den., 255; 1 N. Y., 575; 3 Wend., 142; 18 id., 213).
    
      Alfred J. Hibbard, for respondent
    The defendant, at the time of the trespass, being out of possession, and having lost the absolute and entire control of the cows and farm during the continuance of the lease, could not, in any manner, be held responsible for damage done by the cows while out of her possession (Van Slycle agt Snell, 6 Bans., 299).
   Haight, J.

This action was originally commenced in justice court and was retried in the county court, resulting in a verdict in favor of the plaintiff. Subsequently the defendant moved for a new trial upon the minutes of the court and the motion was granted; from this order the plaintiff appeals to this court. The action was brought by the plaintiff to recover damages alleged to have been sustained by reason of a trespass upon his premises by cattle owned by the defendant

The defense was that the defendant had leased her farm, with the cattle thereon, to one Theron Foster, for the term of three years, and that Foster was in the possession of the farm and of the cattle as her tenant at the time of the alleged trespass.

The evidence given upon the trial established the defense.. At the close of the evidence the defendant moved for á non-suit; the motion was denied and exception taken. The case was then submitted to the jury and resulted in a verdict in-favor of the plaintiff.

The only question presented upon this appeal is whether or-not the owner of cattle is liable for the damages caused by them whilst trespassing upon the lands of others when the c'attle are in the possession and under the control of a tenant

This question was disposed of by the general term of the late fourth department in the case of Van Slyck agt. Snell (6 Lans., 299). Johnson, J., in delivering the opinion of the court, says:

“ The county court was clearly right- in holding that no cause of action was shown at the trial against the defendant, Jacob Snell He was the general owner of a part of the cattle which committed the trespass, but he had rented them, with his farm, to the other defendant, who had the sole custody and control over them when the injury was done. The latter was alone liable under the circumstances for the injury.”

This is a decision of the general term in our own department, and unless we are convinced that it is clearly erroneous we should regard it as controlling upon the question. We have not been able to find any decision in this state holding a different doctrine, but on the contrary it appears to be in accordance with the weight of authority.

It is said in Cooley on Torts, at page 340, that “ The liability for the trespasses of animals is imposed not because of ownership, but because of possession and the duty to care for them. .Therefore, if they are in the hands of an agister, or of any one •who by agreement with the owner has the care and custody of them for the time being, and are suffered to escape and do mischief, he and not the owner is the party responsible.”

In the case of Kennett agt. Durgin (59 N. H., 560) it was held that the owner of cattle kept on land of another, but remaining in his own care and control, is liable for them trespasses on land of a third person, but if the occupant of the land has the custody, he and not the owner of the cattle is liable.

In the case of Rossell agt. Cottons (31 Penn., 525) it was held .that where cattle are placed in the possession of another for agistment, the person having the absolute ownership is pot liable in trespass for injuries done by them.

In the case of Ward agt. Brown (64 Ill, 307) it was held that an action of trespass will not lie against the owner of cattle for trespasses committed by them while they are in the hands of an agister or bailee.

In the case of Moulton agt. Moore (56 Vt., 700) it was held that one having the care and custody of cattle as a lessee of a farm1 and the stock thereon,, is under the same liability for the damage done by tbe cattle as if he were the owner (see also Tewksbury agt. Bucklin, 7 N. H., 518; Gordon agt. Harper, 7 Durnford & East, 9; Hall agt. Pickard, 8 Campbell's Nisi Prius, 187).

We are aware that in Massachusetts and Maine there are conflicting decisions (see Weymouth agt. Gile, 72 Me., 446; Sheridan agt. Bean, 8 Metc., 284). But in each of these cases the cattle were in the possession of an agister. An agister is one who takes cattle for hire to pasture or care for. We think there is a distinction between a person having jiossession of cattle as an agister and one who has possession as the lessee of a farm and the cattle thereon. In the case of an agister, tlie possession is more in the nature of an agent or bailee, the owner remaining constructively in the possession, and may at any time take them into his actual possession; but in the case of a lessee, the owner’s interest m the cattle is parted with for the term of the lease. Within that term he is not entitled to their products, cannot regain their possession, and they are not subject to his management or control.

Without, therefore, deciding the question as to whether or not the owner would be liable in case the cattle had escaped from the possession of an agister and committed trespass, we are of opinion that, when the escape is from the possession of a lessee of a farm and the cattle thereon, the owner is not liable for the trespass.

The order of the county court granting a new trial should be affirmed.

So ordered.

Barker and Bradley, J. J., concurred.

Smith, P. J.

If the principal question in this case was res nova, I would incline to the opinion that the owner of cattle cannot relieve himself from his liability for damages done by them while trespassing on the lands of another by any arrangement he may make with a third person respecting their custody and control. If he leases them, his lessee is pro hoc vice his his agent, and the owner is liable for his negligence (Addison on Torts, 824). But upon the authority of Van Slyck agt. Snell (6 Lans., 299) I vote for affirmance.  