Wood v. Snider

• Decision Date: 08 January 1907
• Parties: WOOD v. SNIDER.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 28

79 N.E. 858

WOOD

v.SNIDER.

Court of Appeals of New York.

Jan. 8, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Allen L. Wood against Hyman Snider. From a judgment of the Appellate Division, 95 N. Y. Supp. 508,108 App. Div. 168, affirming a judgment of the Monroe county court in favor of defendant, plaintiff appeals. Reversed.

The defendant and six other persons owned 40 or 50 cattle in severalty, which were being driven along a public highway toward a slaughter house. The cattle were attended by their owners and others, and, without negligence on the part of the attendants, they escaped from the highway and crossed the lands of one B., a distance of 10 or 12 rods, to and upon the lands of the plaintiff, a nurseryman, and thereby did the plaintiff substantial damage. They were immediately pursued by the attendants and driven from the plaintiff's land. No fence was maintained by B. between said highway and his lands, and no division fence was maintained between the lands of B. and the plaintiff. The defendant owned 10 of said cattle. The plaintiff brought this action in justice's court to recover his said damages, and he insists that he is entitled to a judgment for such part of his damages as the number of defendant's cattle bears to the whole number of cattle that trespassed upon his lands. The defendant obtained a judgment in justice's court dismissing the plaintiff's complaint and such judgment was affirmed on appeal to the county court of Monroe county, and on a further appeal to the Appellate Division. An appeal is taken to this court by leave of said Appellate Division.Richard E. White, for appellant.

George E. Warner, for respondent.

CHASE, J.

In deciding whether the plaintiff is entitled to recover the damages done by the cattle as alleged, it is necessary to consider the rules or principles which have long been established relating to the possession of real property by its owner. Every person whose rights are unaffected by some statute, contract, or prescription is entitled to the possession of his real property undisturbed and unmolested by others. 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 the 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 possessions, 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; Cooley on Torts, supra; 2 Am. & Eng. Encyc. of Law (2d Ed.) 351; 2 Cyc. 392; Cowen's Treatise (4th Ed.) § 536; Bush v. Brainard, 1 Cow. 78, 13 Am. Dec. 513 (see note); Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. 239;Stafford v. Ingersol, 3 Hill, 38; Hardenburgh v. Lockwood, 25 Barb. 9; Angell v. Hill (Sup.) 18 N. Y. Supp. 824;Wells v. Howell, 19 Johns. 385;Holladay v. Marsh, 3 Wend. 142, 20 Am. Dec. 678;Phillips v. Covell, 79 Hun, 210, 29 N. Y. Supp. 613;Clark v. Brown, 18 Wend. 213;Rust v. Low, 6 Mass. 90;McDonnell v. Pittsfield & N. A. R. Co., 115 Mass. 564;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 the right to enjoy his property free from molestation or interference by others. It is simply the recognition of a natural right. It pertains to ownership. Bileu v. Paisley, 18 Or. 47, 21 Pac. 934,4 L. R. A. 840.

There is an exception to the common-law rule stated in favor of a person lawfully driving domestic animals along a highway. If such person exercise due care in so doing, he is not liable for injuries which they do by escaping from his control upon the adjoining lands if they are pursued and promptly removed. Rightmire v. Shepard (Sup.) 12 N. Y. Supp. 800. It is sometimes necessary to drive cattle along public highways,and such use of highways is lawful. As cattle will sometimes stray, even if reasonable care is used in driving them, the possibility of damage by their inadvertent and casual straying upon the lands adjoining the highway is one of the necessary consequences of the enjoyment of the right to use the highway. It must, therefore, have been contemplated when the highway was laid out and established. Such casual trespassing is an inevitable incident to the right to use the highway, and where the owner of lands adjoining a highway leaves the same wholly unfenced, he thereby adds to the possibility of such casual trespass. Goodwyn v. Cheveley, 28 L. J. 298 (Eng.); 47 Justice of the Peace (Eng.) 513, Aug. 18, 1883; Ingham on Animals, 284.

The rules of the common law in regard to cattle trespassing upon the lands of others have been recognized, approved, and adopted in this and many states of the Union. They are not adopted in some of the states of the Union for the reason that they were inapplicable to the nature and condition of the country at the time such rules were first considered by the courts of such states. The great value of the lands of such states for pasturage, and the scarcity of materials for fencing, were the principal reasons for their courts holding that the rules of the common law were inapplicable. Buford v. Houtz, 133 U. S. 320, 10 Sup. Ct. 305, 33 L. Ed. 618. Fence laws have been adopted in this and other states which materially affect the question of the rights of the parties when cattle trespass upon lands from other lands in which they are rightfully allowed to roam.

Where, by statute or otherwise, an obligation rests upon an owner of real property to fence the same, such obligation extends only in favor of persons owning domestic animals which are rightfully on adjoining lands. It is a principle of the common law universally recognized where the common law prevails that owners of real property are not obliged to fence but against cattle which are rightfully on the adjoining lands. See cases and authorities cited above. The statutes of this state are drawn in recognition of this rule. The railroad law (Laws 1890, p. 1093, c. 565, § 32, as amended by chapter 676 p. 1390, of the Laws of 1892) provides that every railroad corporation shall erect and maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep, and hogs from going upon its road from the adjacent lands. And it further provides that no railroad need be fenced when not necessary to prevent horses, cattle, sheep, and hogs from going upon its track from the adjoining lands. The duty to fence their tracks imposed upon railroad companies by statute is the same imposed upon individuals by prescription at common law or by statute, and requires them to fence their tracks only against domestic animals rightfully on the adjoining lands or rightfully on the highway. 12 Am. & Eng. Ency. of Law (2d Ed.) 1084; see, also, vol. 16, 494; Lee v. Brooklyn Heights R. R. Co., 97 App. Div. 111,89 N. Y. Supp. 652. The fence law of this state provides: ‘Each owner of two adjoining tracts of land, except when they otherwise agree, shall make and maintain a just and equitable portion of the division fence between such lands, unless one of such shall choose to let his lands lie open to the use of all animals...