The opinion of the court was delivered by
Thompson, J. —It is only in the case of adjacent owners improving their lands up to, and adjoining, each other, or of one clearing up to the enclosure of a prior occupant, so that “ any part of the first person’s fence becomes the partition fence between them,” that the Acf of 11th May 1842 is applicable. In the case in hand, there was a strip of woodland between the *68owners where the fence was wanted, and if either wished his portion of this unimproved territory enclosed, it was his business to do it. He could not invoke the aid of an Act of Assembly applicable to a different state of facts, and call upon the fence viewers to give him a certificate of the proportion of the expense to be borne by each party in the construction of such a fence, so that on failure of his adjoiner to build his share, he might proceed to build the whole and recover half the expense from him. This proceeding was not resorted to, and if it had been, and a certificate granted, it would have been a nugatory act, as the case was outside of the jurisdiction of these oificers. If the plaintiff built a fence, and the defendant ever cleared up to it, and it became the partition fence between them, he might require contribution. . But this was a fence required to be built through uncleared land, and the act does not apply to it. The defendant’s position in regard to the plaintiff’s cattle, was in no respect affected by notice from the latter to build a portion of the division fence, and his refusal to do so. It amounted to nothing. When, therefore, the plaintiff’s cattle came amongst the defendant’s, on his own pasture-ground, he had a right to turn them out of it. They were trespassing.
The Act of 1700 only provides against injuring cattle, by the owners of insufficient fences, in driving them out of such enclosures. It was never supposed, that such owner or occupier should be compelled to permit the trespassing beasts to remain in his fields; lest, peradventure, they might be injured or lost, if he turned them out. He was not to cripple or harm them in driving them thence. In this case, the disaster which befell the plaintiff’s ox, can, in no legal sense, be attributable to the act of turning the ox out of his fields by the defendant, any more than if a tree had fallen upon it in the forest, or it had foundered in a bog, a responsibility for which could only ensue in case of the animal’s removal from an enclosure where it had an entire legal right to be kept. This right was assumed to exist, because of the noncompliance, by defendant, to build half of the fence between the plaintiff and himself, which we have said he was not bound to do. There was no error in this part of the case.
The plaintiff claimed in. one count of his declaration, that the defendant, by reason of obstructing the highway where his ox got its leg broken, was answerable. It appeared, that he had building materials for the erection of a barn in a portion of the road, but showed that he left ample room for the passage of travellers, with teams and cattle, unobstructed. The court affirmed the plaintiff’s second point, which was a prayer for instruction that, if the injury was occasioned by obstructions placed in the highway by the defendant, he would be liable, with the qualification “ that if the defendant was, at the time, putting up a build*69ing, and in doing so he used a reasonable part of the highway, but no more than was conveniently necessary to enable him to complete the erection, and there was ample and sufficient room left for the passage of cattle and persons travelling, it would be. otherwise.” That “ there is a kind of common law, founded on long habit and practice^ both in city and country, for persons, in erecting buildings, to occupy a portion of the contiguous street or highway to lay materials therefor in them, and but little if any complaint is made on account of it, if a free and easy passage for all business and travelling purposes is left.” This instruction is assigned for error. The case of the Commonwealth v. Passmore, 1 S. & R. 217, seems to sustain this position fully; and the same thing was held in The People v. Cunningham, 1 Denio 524, in which it was said, “ a temporary occupation of a part of a street or highway by persons engaged in building, or in receiving, or delivering goods from stores or warehouses, or the like, is allowed from the necessity of the case.” The necessity of the case was probably the foundation of the rule, and is the foundation of most laws and municipal regulations; but the practice has become a custom of such long standing, that it is regarded as law, and the right will not be defeated by an investigation into the necessity of so doing in any particular case. It is a right to be exercised, under responsibility for all injury arising from an unreasonable or negligent use of it. The jury found, on this instruction, for the defendant, that the use was not unreasonable or the manner negligent. We find no error in the case.
Judgment affirmed.
Strong, J., dissented.