The gist of the action is the neglect of the defendants to erect and maintain a fence between their land and the land of Van Harter, in consequence of which the *455horse of the latter escaped, from the field of its owner to the defendants’ land, and fell down a precipice upon the plaintiff, and injured him, he being lawfully there, &c.
The complaint alleges that the defendants were, by reason of their possession of their said lands and otherwise, bound to erect and maintain a fence between their said lands and the said land of Van Marter.
If any liability exists, it grows out of the defendants’ duty to erect and maintain the fence, the neglect to do which caused the injury to the plaintiff. But this duty must have been due and owing to the plaintiff, or to him and others, or to the public at large, to give the plaintiff such an interest in the discharge of it as to enable him to maintain an action for its violation. By the common law no man was bound to erect fences either to protect his possession or to entitle himself to a remedy against the trespasses or encroachments of others. Every man was bound to keep his animals within his own enclosures, or be liable to pay damages for such trespasses as they might commit on the lands of others, whether enclosed or not.
In regard to division fences between adjacent owners, our statute requires each to make and maintain a just proportion, unless one of them chooses to let his lands lie open. (1 R. S. 353, § 30, &c., 1st. ed.; 661, 4th ed.)
Section 37 of the same statute, as amended in 1838, declares the consequences of the neglect of any person liable to contribute to the erection or reparation of a division fence, &c. He shall not be allowed to have or maintain any action for damages incurred, but shall be liable to pay the, party injured all such damages as shall accrue to his lands, and the crops, fruit*- ■ trees, and shrubbery thereon, and fixtures connected with the said land, to be ascertained, &c. (Sess. Laws of 1838, ch. 261.)
It seems to me quite clear that no one but the adjoining owner or possessor has any interest in the duty or obligation of another to build or maintain a division fence. (Bronk agt. Becker, 17 Wend. 320; Ricketts agt. the E. & W. India Docks & B. J. Railway Co., 12 Eng. L. & E. R. 520.)
The. first count of the complaint in this case places the de*456fendants’ liability entirely on their neglect to make the fence. The second count combines with it the fact that the bank or precipice which they had made by digging, &c., had been left in a dangerous and improper state through the default and negligence of the defendants. In both counts, however, the damage complained of was in consequence of Van Harter’s horse escaping from the land of the latter to and upon the land of the defendants, and falling down the bank upon the plaintiff, In both it appears that except for the horse straying from its owner’s field no injury would have happened ; and if I am correct in supposing that no one but Van Harter has any ground of complaint against the defendants for neglecting to make and maintain the division fence, the plaintiff cannot sustain an action founded upon such neglect.
If the injury complained of had been the result alone of the defendants’ negligence in leaving the bank in a dangerous state, such for example as the earth sliding upon the plaintiff when he was lawfully there, I am not prepared to deny but an action might be sustained. But notwithstanding the allegation in relation to the negligent and dangerous condition in which the bank was left, we cannot fail to see that no damage has happened to the plaintiff excepting by Van Harter’s horse falling upon him, which in my opinion gives him no more right of action against the defendants than if the horse, after he had thus escaped, had run over the plaintiff and injured him in the highway.
There is nothing in the complaint to show that the defendants were building a railroad at the place in question or elsewhere, so as to apply the railroad statutes to the case, if that would change the rights or duties of the parties.
The defendants are entitled to judgment on the demurrer, with leave to the plaintiff to amend the complaint on payment of costs.