1. Any division of fence by the owners of adjoining lands under improvement, in writing, and recorded in the town records, is made forever binding upon the parties and all succeeding owners and occupants of the land. R. S., c. 136, s. 2. This provision of the statute refers to the state of things existing when the fence was divided, and before the land of one adjoining owner is sold in different parcels to different persons; otherwise, when new coterminous proprietors are introduced, each one extending over part only of the line so divided, the burden of maintaining the fence as divided originally by the adjoining owners of the whole line will be unequally distributed. The plaintiff, by buying *Page 660 the south half of the Humphrey farm, would not throw upon the owner of the north half the burden of maintaining more than one half of their partition fence. Jones v. Perry, 50 N.H. 134; Adams v. Van Alstyne, 25 N.Y. 236; Wright v. Wright, 21 Conn. 329. This view of the construction of the statute is strengthened by the fact that in the revision of the statutes in 1867 the word "forever" is omitted. G. S., c. 128, s. 2. A reasonable construction of the statute is, that the division fence made by owners of adjoining lands under improvement, in writing, and recorded in the town records, is binding upon the parties and all succeeding owners and occupants of the land until the line is severed by a conveyance of a part of the land on one side, when new divisions of the severed line are authorized. If the defendant is bound to maintain all the fence between his land and the plaintiff's until a new division is made, he is not shown to have neglected that duty. It does not appear that the fence was insufficient, or that the plaintiff's horses were in the defendant's land through any fault of the defendant. The obligations of the parties as to maintaining the fence or keeping their horses on their own land after the line was severed by change of title and before a new division, is a question we do not decide.
2. The plaintiff contends that the defendant is liable because he did not proceed in the manner prescribed by G. S., c. 129, by impounding the horses taken in his enclosure. The defendant offered to show that he took the horses into his possession for the protection of his own stock and for the convenience of the plaintiff, with no purpose or intention of exercising any further control over them; and he contends that in carrying out this purpose he was not guilty of a conversion. At common law the aggrieved party was personally empowered to seize and impound beasts found doing damage in his enclosure, both because it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage, and that he might hold them as a pledge for the satisfaction of the damages done. The same right is given by statute. G. S., c. 129, s. 1. If the defendant had sought to recover for the damage done by the plaintiff's horses, he might have proceeded according to the statute by impounding them, or by his action of trespass at common law. He might also waive his claim for damages, as he has done. What, then, was he to do when the plaintiff's horses broke into his pasture and began to injure his mares and colts? His remedy by impounding or by action was not exclusive. He had the legal right to remove them. In protecting his own animals, it was his right and duty to do with the plaintiff's whatever was reasonably necessary to be done under the circumstances. Aldrich v. Wright, 53 N.H. 398.
When the goods of another are taken under the pressure of what is called a moral necessity, a license will sometimes be presumed, and the taking will not be a conversion; as, where a thing is taken *Page 661 to do a work of charity, or to do a kindness to the owner, with no intention to do an injury to it, or of converting it to the use of another. 2 Gr. Ev., s. 643; Clarke v. Clarke, 6 Esp. 61; Drake v. Shorter, 4 Esp. 165; Plumer v. Brown, 8 Met. 578. If the plaintiff's horses had been taken by the defendant into his possession upon a sudden emergency like shipwreck or fire, or had been taken up as estrays to prevent their becoming lost or stolen or to ensure their safety from danger, the taking would not have amounted to a conversion. If the circumstances under which they were removed, as stated in the defendant's offer, do not show an emergency much like that where property is taken possession of to ensure its safety, the plaintiff cannot for that reason complain, if the defendant did not do more than was reasonably necessary They were taken doing damage in the defendant's enclosure They were removed from the defendant's pasture to protect his property, and put in his barn for their safety and the plaintiff's convenience. If the defendant did no more than was reasonably necessary under the circumstances, he was not guilty of a conversion, and it is not material that he waived his claim for damages by not pursuing his statutory remedy by impounding, or common-law remedy by suit in trespass. Whether what he did was reasonably necessary to be done under the circumstances, or whether he went beyond the line of reasonable necessity, was a question which should have been submitted to the jury. For error in excluding the testimony offered, the verdict should be set aside.
SARGENT, C.J., concurred in the conclusions arrived at in the foregoing opinion.