The declaration in this case counts upon the neglect, on the part of the defendant, of his duty to restrain and take care of his horse, and keep him from being at large in the highway, through which neglect, the said horse, being at large', with great force and violence started, and ran about and before the horse of the plaintiff, which thereby became restive and frightened and ungovernable, and ran along said highway, and by reason of such fright ran out of said highway, and became damaged, etc.
There is no averme'nt of any vicious quality or habit in the defendant’s horse, known to the defendant. The onlj. fault alleged against him consists in letting his horse, through negligence and carelessness, be in the highway, in violation of his duty to restrain and keep him out of the highway. The residue of fault charged consists in the conduct of the horse in running about and before the horse of the plaintiff, as he was driving along said highway.
*342• The evidence shows that the defendant’s horse came out of his lot through a door-way, that, as the jury have found, got open through the carelessness of tire defendant, and was feeding from the road side of the fence on the oats of the defendant growing on the other side, when the plaintiff was driving along the highway lying through the defendant’s farm. It also shows that all the faulty conduct of the defendant’s horse, as charged in the declaration, occurred along the highway within the limits of the defendant’s adjacent land. It contains nothing tending to show that the defendant had any knowledge of any vicious or roguish trick or propensity in the respect complained of, or indeed, that he had any such propensity or trick, save that on a single prior occasion, when he happened to he in the highway, he pranced about, as another horse was passing along.
The whole trial, including the charge of the court, proceeded upon the assumption that the defendant had no right to have or permit his horse to be loose in the highway, and that if he was there through the carelessness of the defendant, he, the defendant, was liable in law to respond any damage that’ should be caused thereby.
If this is the true view of the subject, we should have no great difficulty in upholding the verdict under the charge in its relation to the evidence given on the trial.
Under the last of the series of requests made by the defendant for a charge, the question is directly raised, whether the law, as to the duty of the defendant to restrain his horse from being in the highway, was warrantably assumed to be as was held by the county court, as the basis of the right of action set forth in the declaration.
It is too familiar to warrant debate, that the owner of land, through which a highway is established, retains the fee of the soil embraced within its limits, with the full right to its enjoyment in any manner not inconsistent with the enjoyment of the easement by the public for the purpose of a highway. He has the right to the herbage, and whatever else is of value, to any extent not infringing the proper maintainance and use of the public thoroughfare ; and this right is exclusive against all other persons. Perley v. Chandler, 6 Mass. 454. Stackpole v. Haley, 16 Ib. 33. Jackson v. Hathaway, 15 Johns. 447.
*343Under our more recent statutes the law now is in this state, as it ever has been in England, and other of the American states, that the owner of land is under no obligation to fence his own land along a highway. The obligation in this respect results only from his duty to restrain his own cattle from trespassing upon his neighbor. He may leave open his own land to the highway, and his cattle may enjoy the full range -of the margin in devouring the herbage or in other pastimes, without trespassing upon anybody, and without giving any individual of the public any ground of complaint, unless he is guilty of some fault through which the enjoyment of the public easement is impaired.
It must be equally his right to let his cattle or horses be in the highway along through his land in case the same should, be enclosed by side fences, subject to the same condition in favor of the easement to be enjoyed by the public. Avery v. Maxwell, 4 N. H. 36. It follows then, as matter of course, that the mere fact of a domestic animal, as a cow or a horse, being in the highway in this manner cannot be regarded as unlawful — a breach of duty — rendering the owner liable for all injurious consequences that may accidentally flow therefrom. Something more must exist in concurrence with that fact in order to predicate fault in the owner that will render him thus liable. If the animal have the character and habit of peaceableness and quietude it is impossible to say that there would be any breach of duty, at suitable times — as in the open day, and in the ordinary course of the use of highways in farming neighborhoods, to permit either by design or by accident, such animal to be loose in the highway within the limits of his own farm. There may be times and occasions when it would be a culpable fault so to do, and would subject the owner to such damage as might result therefrom. For instance, to permit animals to occupy the highway by night, with the likelihood of their lying down for their rest in the travel path, and by thus obstructing it, causing accident and damage. But in such cases, the question of fault would have to be submitted to the jury upon all the circumstances under proper instructions, as,to the respective relative rights and duties of the landowner, and the public.
As before remarked, the only fault charged upon the defend*344ant as subjecting him to liability in this case, is the fact that he negligently and carelessly failed to restrain his horse from being in the highway ; all the rest is charged to the conduct of the horse itself, so being in ihe highway.
It is obvious that both must concur, in order, upon the plaintiff's own theory, to subject the defendant to the liability claimed.
Tf therefore, in the eye of the law, fault in the defendant cannot be predicated upon the mere fact of his horse being in the highway, it is obvious that there remains no sufficient ground for charging him with liability for the resulting damage. To hold the defendant thus liable upon the view in which the declaration was framed, and the case was tried, would seem to result in making him the absolute insurer against all casualties that should occur to travelers in consequence of his cattle or horses being in the highway for any other purpose or reason than merely that of using such highway as a thoroughfare.
Now we do not understand the law of the subject to visit such a responsibility upon the defendant. The right of the public to the enjoyment of the easement is unquestioned. The right of the land-owner to any use of the margin of the highway in any manner not inconsistent with that right of the public, is equally unquestioned. The mere fact of a horse or cow being in the highway, and upon the margin.depasturing or standing, is, in itself, in no way inconsistent with the right of the public. Whether there by accident or design can make no difference in this respect. In order to constitute the being there of such animal wrongful on the part of the owner, it should appear that the circumstances and occasion, or that the character and habits of the animal were such as to show carelessness on the part of such owner in reference to the convenience and safety of travelers on such higtiway ; and only in this way do we think he should be subjected to liability for accidental injury and damage that may ensue in such a case.
Much is said in the books and cases about its being unlawful to permit cattle to run at large in the public highways ; but on examination, it will be found that such unlawfulness is asserted in reference to the rights of adjoining land-owners, who may claim entire immunity from the cattle of others even without any *345fence against them along the highway. We do not at present, as it is not necessary, undertake to say whether in this country persons may or may not let their cattle run at large and depasture along the margin of the road through another’s land. There has been a period when in this state no remedy could be asserted by suit for such an act; and it has sometimes been intimated that it was a kind of local common law, that cattle might thus depasture.
This however, was when our statute required land-owners to maintain lawful fences on highways in order to entitle them to impound cattle that had passed from the highway on to their land. That statute not now being in existence, it may admit of question whether we should not now regard ourselves as standing on the English common law on this subject. But it is needless to discuss the subject in this direction.
The judgment is reversed and cause remanded.