On Petition for Rehearing.
Mr. Justice Beandelivered the opinion.
4. The plaintiff now makes the point that the erroneous instruction referred to in the opinion was harmless error, because he Avas under no obligation to fence against the stock of the defendants, but they were bound to keep it on their own land, and, if they failed to do so, would be liable in damages for the trespass whether the plaintiff’s land Avas fenced or not; in other words, his position is that, as it pertains to the land of several parties inclosed Avith one fence, the common-law rule prevails, and each owner must at his peril keep his stock off of his neighbor’s land. The statute (Hill’s .Ann. Laws, § 3445,) provides that all fields and enclosures, except in what was known as Umatilla County in 1872, shall be fenced Avith a certain kind of fence, and in Campbell v. Bridwell, 5 Or. 311, it was held that this statute, where applicable, repealed the common-law rule Avhereby the owner of domestic stock was made liable for an injury done by it to the uninclosed land of another. And there is no reason, so far as we can see, why the statute should be construed to apply to exterior fences only. It makes no distinction between exterior and division fences, but requires all fields to be inclosed with a fence; and, under the decision referred to, if the landoAvner Avould have a remedy for the trespass of stock he must inclose his land, unless, of course, as the plaintiff attempted to show in this case, he was prevented from doing so by the Avrongful act of the owner of the stock. The statute of Indiana, under which the decision principally relied on by the plaintiff (Myers v. Dodd, 9 Ind. 190, 68 Am. Dec. 624,) was made, differs materially from our statute. It simply defines what shall con*448stitute a lawful fence, and then provides that the owner of domestic animals shall be liable for damages done to tjie land of another unless inclosed by such a fence: 1 Rev. Stat. Ind. 1852, p. 292. But there is no provision that all fields shall be so inclosed, and the courts of that state have held that the common-law rule prevails except as to exterior fences. The petition for rehearing is denied. Rehearing Denied.