Parker v. Jones

Metcalf, J.

The first instruction for which the plaintiff asked assumed as law that the mere fact that a cow is grazing on the roadside, adjoining her owner’s inclosed land and dwell*272ing-house and near his shop, is proof that she is not going at large without a keeper. Such is not the law; and the instruction was properly refused. The question was, whether the cow was in fact at large, and not actually under the efficient care of a keeper. If she was, it was the right and duty of the defendant, as field driver, to take her up and place her in a public pound. Bruce v. White, 4 Gray, 347.

The second instruction asked for by the plaintiff was also rightly refused, because it assumed what is not law, namely, that if a field driver, in taking an animal to the pound, drives it upon the owner’s premises and thence to the pound, the impounding is therefore necessarily unlawful. The second instruction given to the jury so modified the second instruction prayed for as to give to the plaintiff all the benefit to which he was by law entitled under his prayer.

The first instruction given to the jury was clearly right. The only objection made to it by the plaintiff’s counsel is, that the. judge did not state to the jury what was a going at large and not under the care of a keeper. It is a sufficient answer to this objection, that the judge was not requested so to do. The instruction being right, the verdict must be taken to have found the facts to have been such as warranted a finding for the defendant under that instruction.

The exceptions state that at the trial there was evidence which is not reported. We must therefore presume that the instructions, of part of which we could not otherwise see the pertinency, were adapted to the evidence that was introduced, though not presented for our consideration. Parmenter v. Coburn, 6 Gray, 510.

The owner of land adjoining a highway, and who owns to the centre thereof, doubtless has a right to depasture his land in the highway; but he cannot, in virtue of this right, be exempted from the duty of preventing his cattle from going at large thereon without the care of a keeper, but is bound by the same law (Gen Sts. c. 25, § 21) which is applicable to others.

Exceptions overruled.