The following dissenting Opinion was delivered by
Caton, J.Differing, as I do, from the opinion of the majority of theCourt, propriety and justice to myself, as one of its members, require that I should assign the reasons which have forced me to the opinion which I entertain. If the influence of this decision might not be felt beyond the case, or even this question, I might let it pass in silence ; but the rules of construction which are adopted, not only in construing our statute by which the Common Law of England is adopted here, but the statutes relating to this particular subject, are such that I can give them no sanction by my silence, for I think if they become the settled doctrine of the Court, they will lead to alarming consequences. It is admitted, on all hands, that by the Common Law of England, every man was bound to keep his beasts within his own close, under the penalty of answering in damages for all injury arising for their being abroad, and that the owner of land was not bound to protect his premises from the intrusion of a stranger or his animals. By the first section of the sixty first chapter of the Revised Statutes, it is provided that, “ the Common Law of England, so far as the same is applicable, and of a general nature, and all statutes and acts of the British Parliament made in aid of, and to supply the defects of the Common Law, prior to the fourth year of James the First,” (excepting three specified statutes,) “ and which are of a general nature and not local to that Kingdom, shall be the rule of decision, and shall be considered as of full force, until repealed by legislative authority. ” Let us first inquire whether this admitted principle of the Common Law was adopted by this statute, for this is questioned by those who disagree with me. That it is “ of a general nature, ” is too clear to require argument, and its exclusion, if sustained at all, must be upon the ground that it is not applicable. What did the legislature mean by the use of the word “ applicable ” ? Applicable to the nature of our political institutions, and to the genius of our republican forms of government, and to our Constitution, or to our domestic habits, our wants, and our necessities ? I think I must ever be of opinion, that nothing but the former was meant, and that to adopt the latter is a clear usurpation of legislative power by the Courts. If we adopt the former, but little difficulty will ever be experienced in applying the rule, and the question propounded will always be of a legal character, for legal rules will always determine whether,any given portion of the Common Law is consistent witbj or hostile to, the genius of a republic or the principles of our Constitution. By this principle, the rule by which any portion of the Common Law is excluded, or adopted, will apply with equal force all over the State. If we adopt the latter, then we are driven to examine, not a question of law and principle, but of convenience and policy. «By this latter rule, we might have to hold a principle of the Common Law in force in some portions of the State and not in others; for in some places in it might be well adopted to the genius, and customs, the wants and expectations of the people, while it would be the very reverse in others. We should have to investigate, and decide upon facts, without any legal mode of of trying them, and not law. If we say that we will not enforce a principle of the Common Law, because, in our judgment, a different rule would be better /or the general good, or more just in principle, or more conformable to the habits and ways of the people, then it seems to me that we are legislating, and I know not where we should stop in this course of judicial legislation. If the Courts may say that this rule, or that, of the Common Law, is not law, because a different rule would be more just, or would suit the people better, then they must assume that their judgments are infallible, and there is no longer any occasion for a Legislature to alter the Common Law, for the Courts will happily make all needful alterations. The very statement of such a proposition, in plain terms, is too startling to find an advocate, and too dangerous to admit of defence, and yet, it seems to me, that we are rapidly verging to that alarming position, if we are not already there.
For the purpose of proving that this principle of the Common Law is but illy adapted to a country like ours, and hence not applicable, several assumptions are made, some of which are mere matters of opinion, about which men may well differ, while others originate in a misapprehension of facts. Whether it would be better for each one to take care of his own stock, and allow these “ extended prairies 33 capable of producing grain, sufficient to feed a nation, to be reduced to a state of cultivation, without the owner’s expense and great delay of fencing them, where timber is scarce, would be but matter of opinion, which the people’s representatives are much more capable of forming than we are. I think it quite as probable that the settlers located on the borders of the prairies, that they might cultivate farms, without the expense and delay of clearing off a heavy growth of timber, as that their moving object was to obtain a range for their cattle. Notwithstanding the privilege which it is said they have always enjoyed, not one part in a thousand of this luxuriant growth of grass, but has rotted and decayed where it grew, or more generally been consumed by fire. So it will ever be, for the want of those thousands of cattle to crop it, until brought into cultivation by the husbandman’s plow. One acre in tillage is of more value than many acres of wild grass, which would seem to show, that as á question of political economy, it were better to allow the land to be cultivated without the expense of inclosing it, to keep off strangers’ animals, than to impose so onerous a tax upon the tillage of the soil, for the sake of the small value of grass consumed by cattle. Again, it is said by intelligent men, to be capable of demonstration, that one fourth the expense required to inclose the cultivated lands, and meadows in the State, would suffice to make pastures for all our stock. If so, it would show that this principle of the Common Law is not so inapplicable to the condition of our country and people. At least, so long as the Court might be mistaken in its notions of convenience, it demonstrates the propriety of leaving that question to the Legislature, where it properly belongs.
This principle of the Common Law is most unquestionaably the law of natural justice, whence it originated, for it secures to each one the quiet enjoyment of his own, without intrusion or molestation from another. There is another principle of the Common Law which, in fact, expresses this in more general terms, and it is this : You shall so use your own as not to injure another. Is this maxim to be repudiated because it is not applicable to the genius of our people, and their customs and habits ? The decision of this case would seem to say so. It is not for the benefit of the tiller of the soil that the fence is made, for his crops will grow as well without it; but it is for the benefit of the owner of the animals, that he may be relieved from restraining their natural propensities. I have no more natural right to compel my neighbor to protect his crops against my swine, than I have his orchard against my children or myself. It cannot be successfully denied that this alteration of the Common Law, is imposing a burthen upon one for the benefit of another, which should never be done, at least without his consent,' by himself or his representative. Again, it is assumed, that it has ever been the custom in this State, for the settlers to allow their stock to run at large. If this were so, it would not change the Common Law, for that can only be done by legislative authority. But the proposition is by no means universally true, in point of fact. It is within my personal knowledge, that in many portions of the State, and I think it is almost universally so in the prairie settlements, it has never been the custom to allow swine and sheep to go at large, or toffence against them, and now, under this decision, all their crops may be destroyed with impunity./Again, it is said that “no man has ever questioned this right to let stock run at large;” and that “never till now, has the Common Law rule been supposed to prevail, or to be applicable to our condition.” Here, again, the assumption is not supported by the facts. I have been for about sixteen years constantly engaged in the Courts in this State, and this is the first decision that 1 have ever known on this subject, where the Common Law rule has not been held to apply, although the question has often arisen, and been as often decided, and so universal has been the acquiescence of the Bar and the people, that this is the first case where the question has been brought up for review. I might, at least with equal propriety, say of such acquiescence, that it “is entitled to no little consideration in determining what the law is.” It more properly, however, serves to show how unsafe it is for us to depart from the well settled rules of the Common Law, upon our own notions of its propriety, or convenience, or applicability, or upon what we believe to be the understanding of the community. Our powers and duties are not representative, nor' is a position to be held to be law, because the people have generally understood or wished it to be so, but the Court must still look to other lights to find out what the law really is. When the principle becomes established, that the Courts shall construe the law as the people understand it, then will a Cleon be justified in taking an appeal from the decision of the Judge upon the bench, to the multitude in the Court House yard. Then may the lives and property of the citizens be subject to the fitful passions of our enfrenzied populace. It will ever be the glory of the Judiciary to stand boldly up, and with a manly energy and firmness, fearlessly proclaim the law as it is, in defiance of popular prejudice tor public clamor. I entertain no fears that any portion of the Judiciary will ever waver in its duty, in obedience to a sudden outburst of popular excitement; but the danger, if any, is that the influence of a general public opinion, long entertained, may induce the Courts to distort the law so as to conform to such opinion, rather than incur the public criticism, which might be induced by a decision which would disappoint public expectation. The latter, I think, is fraught with more permanent danger than the former, for the first would be soon corrected by the re-action of a temporary excitement, when those who had intimidated the Judge, would condemn him for having yielded to their influence;, but no such consequence would be likely to follow the latter case, while the wound which principle would receive, might never be healed. While following the seductive lure of a general public opinion, the Courts would become familiarized with a departure from the stern and inflexible rules of the law, and as each decision becomes a precedent, authority would soon be formed for overturning the law, for the sake of public convenience, or to gratify public prejudice; and who can tell where such a course, at first, perhaps, convenient, and but for the precedent, advantageous— would end? Who does not see, if we start out with the principle of making our decisions conform to public opinion, and for a justification, say that the genius of our people, and their customs and habits demand it, we shall soon end in making our notions of their wants and interests, rather than the Common Law, or the express statute, the rule of determination, and as at no time will the» public opinion alone be the alleged ground of decision, that too may be soon disregarded, and we shall be left to our own arbitrary notions of what is best adapted to the public good. That would be an usurped, and a despotic power,,.»*'’1 "
But ours is not the only State where the Common Law seems to be undergoing radical changes in some of its fundamental principles, not by legislative authority, but by the will of the Courts. Nay, we find ourselves quite outstripped in this work of improvement, by some of our more enterprising or more venturesome neighbors. But lately we were informed that it had been discovered in one State, that' a testator could not impose as a condition to a devise to his widow, that it should be void upon her second marriage, and that the Common Law on that subject is all wrong, and should be altered, and so the Court alters it and holds the condition void. Again, we learn that, in another^ case, has been made a,great improvement upon the Common Law by holding that an attorney in a cause is ap incompetent witness, although a few years ago hardly any enlightened Court would have allowed counsel to argue either proposition. That a condition to a grant or devise prohibiting marriage is void, as a general rule, may not be denied; but the c.ases are as uniform that by the Common Law (though not by the Civil Law,) a devise to the testator’s widow is an exception to the general rule; (see 1 Story’s Eq. Jur., § 285, and cases cited in note 4;) yet all the cases establishing this exception are quite overlooked by that Court in its glowing admiration of the general rule. If startling at first, these innovations upon the Common Law will soon cease to surprise us. Although both may be real improvements, ( and I have no doubt but that the exclusion of an attorney in the cause as a witness would be,) I think it would be much safer and better that they should be made in a constitutional way by the Legislature.
I will allude to one or two cases for the purpose of seeing what progress we are making in this work of improvement. In the case of Boyer v. Sweet, 3 Scam. 120, the Court professedly decide against the principles of the Common Law, upon the ground that the new rule adopted will be more convenient and just under our business habits, and the alleged pliability of the Common Law is asserted for its overthrow. Now I complain more of the principle avowed than of the decision itself, for authorities may be found sustaining that decision upon Common Law principles. Is the Common Law only clay in the hands of the Courts, to be moulded and shaped by them to suit their wills P In the case of Penny v. Little, 3 Scam. 301, the doctrine avowed in the former case is practically carried out. The question there involved the right of a landlord to distrain for rent where no such right was reserved in the lease. It is admitted that by the Common Law he had no such right, and that we have no statute conferring the right. In England there is a late statute giving the authority. And here without any such statute, and against the Common Law, it was held that the landlord possesses this despotic power over his tenant. If this is more conformable to the genius of a republic or our people, it remains to be shown. But the people had so understood the law, for they had submitted to its practice for twenty years. This Territory once belonged to Virginia, and although it is not shown that her laws authorized such distress, the Court says : “The legislation of the Territory and of our State was adopted in reference to the law as it then existed in the country. Upon this principle and none other, can we account for the numerous cases in which the Common Law has been changed by statute in England since the fourth of James I., and those changes adopted by the Courts in this country without having been first re-enacted by our legislatures.55 How is it that the Courts in this country possess so much more power to change the law than in Great Britain ? There, this very change could only be effected by an Act of Parliament; here, it is done by the Court alone, not only without legislative sanction, but in defiance of the positive mandate of our statute adopting the Common Law, and the principle clearly and deliberately proclaimed that they have the right to do so. This power is not given by the Constitution or laws, but is usurped by the Court, probably in deference to a public opinion of twenty years’ standing: But this supposed public opinion has not the merit of having originated in a sense of justice, for the landlord has no more abstract right to distrain for his rent, than the merchant for his goods. By what rule of right or reason should the landlord and none others be allowed to seize and sell his debtor’s goods without a judgment and without a trial? Is that in harmony with the equality or genius of a republic ? But a mistaken notion of the law by the public cannot make the law, and yet, had this public opinion for these twenty years been the other way, I am inclined to think the decision would have been the other way too. There is a place where public opinion may be legitimately exercised and properly represented, and to the Legislature alone should we look for changes in the law. If we are careful to keep within our own constitutional sphere, I think we shall do the best. Of all others, we should be the last to transcend our powers.
By the construction given to the word applicable, we assume the right to disregard any other provision of the Common Law, which in our judgment would be inconvenient, and no one can safely advise his client relying upon the Common Law. After this assumption no step remains to be taken to unite in our own hands the powers delegated by the Constitution to two separate departments of the government. Should the Legislature as manifestly assume judicial powers, I think we should not hesitate to declare the Act unconstitutional. And yet this principle which is so broadly claimed in the case of Penny v. Little, is now again asserted in unqualified terms, and those cases both referred to with approbation. This has led me to a somewhat extended examination of this doctrine, which, it seems to me, is fraught with so much danger, and to which I cannot consistently subscribe. And I hope the fact that this case is at last decided professedly on other grounds, will prevent it from being used as authority for the extension of this principle. With how much more propriety might the Court have held that the Common Law, as applied to navigable rivers in England, was not applicable here. If physical causes could justify us in holding any portion of the Common Law inapplicable, we might with truth have said, that a rule founded upon and applied to the diminutive streams of Great Britain, where its theory is generally supported by a coincidence of facts, was not applicable to the great rivers of this continent, which are, in fact, navigable for thousands of miles above tide-water, and yet this Court, with a manly firmness which has challenged the admiration of some of the ablest jurists of other States, asserted and administered the Common Law as it found it, without attempting to fritter it away because it was not applicable. See Middleton v. Pritchard, 3 Scam. 510, and note of Chancellor Kent on that case, 3 Kent’s Com.'(6 ed.) 432.
But this is not the first time that the inapplicability of this portion of the Common Law has been urged. In most of the cases to which reference will hereafter be made was the same argument used, and particularly in the cases in 5 Greenl. 356, and 6 Mass. 90, was it contended by eminent counsel, that this principle of the Common Law should not be enforced because it is not adapted to a new country. But the argument was repudiated by the Courts, and a very strict and limited construction given to their statutes in order to uphold the Common Law, which could only be repealed by the clearly expressed will of the Legislature in a positive enactment for that purpose. Those Courts were content to administer the law as they found it, leaving it to the Legislature to make the change, if desired by the people. How different here!
Ilaxdng assigned the reasons for my opinion, that this portion of the Common Law was adopted with the rest by our statute, and that it cannot be disregarded by the Court till changed by legislative authority, I shall proceed to examine whether it has been so changed.
All the statutes which we now have, or have had since January, 1835, are embraced in the fifty-first chapter, Revised Statutes. But as several of the proxdsions of that chapter were originally passed in several different acts, and as I concur in the opinion that we are to construe them precisely as if they were now only to be found in the original Acts as they were passed, it becomes necessary first to examine their history. In 1819, an Act was passed, the first section of which provided “That all fields and grounds kept for inclosures shall be well inclosed with a fence composed of,” &c. and then prescribed very minutely the character of the fence. The second section was the same as the fifteenth section, fifty-first chapter, Revised Statutes, except that the words “the fence being of the aforesaid height and strength’ were used instead of “the fence being good and sufficient,” as it is now. The third and last section of that Act prescribes the rule on the subject of division fences and was the same as sections eleven, twelve, thirteen and fourteen of chapter fifty-one, Revised Statutes. Thus the law continued till the Act of 1835 was passed. By that Act, — which by its title professed to be an amendment of the former law, —the first and second sections of the Act of 1819 were repealed, the second section re-enacted with the alteration above specified, and three new sections were added, which now compose sections sixteen, seventeen, and eighteen of chapter fifty-one, Revised Statutes. We learn from this, that by the rule of construction before laid down, and in which we all agree, that sections eleven to eighteen inclusive must all be construed together; for sections eleven to. fifteen inclusive were originally passed togetl er, and composed the whole of the "Act of 1819, except the first section, which was repealed by the Act of 1835 and, as I shall presently show, has never been re-enacted. It will not be denied that an amendatory Act, must be construed in connection with what is left unrepealed of the original Act, By these rules section fifteen, chapter fifty one, Revised Statutes, has a double claim to be construed in connection with the four sectionsriwhich now precede it; first, as having originally composed a part of the same Act with them, and second, as being re-enacted by and composing apart of the Act of 1835, which was an amendment to that Act. And the three sections which now follow it should be construed with it, and the four preceding sections, because they were originally enacted in a law which was an amendment to an Act of which they formed the whole, except the first section which was repealed.
Having thus settled the rules by, or rather the connection in which these statutes should be construed, I will proceed to examine these sections from eleven to eighteen inclusive, for the first ten sections relate to common fields alone, and the last two to fences made by mistake, and it is not pretended that they have any thing to do with the question. I will first show that no part of the first section of the Act of 1819, which was repealed by the Act of 1835, has ever been re-enacted, for it is the peculiar phraseology and strong expressions used in the first two lines of that section, upon which reliance is placed and the argument is based, showing that this provision of the Common law is repealed. Indeed, it is expressly stated that sections one and two of the Act of 1819 “were substantially re-enacted, except, that what should constitute a sufficient fence was left to be determined upon the trial, instead of being prescribed by law,” and it is inquired, “why these provisions, if the owner of cattle, coming upon the lands of another, was liable in any event, whether the latter had a' fence or not ? What did the law mean by requiring all fields kept for inclosures to be well fenced?” There might have been force in these interrogatories, were that first section now in force, but unfortu-' nately for the argument which they contain, it is an entire misapprehension that any part of that section has ever been re-enacted. Nothing of these peculiar expressions, nor any one sentence or part of sentence of that first section, nor any idea, or principle or provision which it contained is to be found in the law of 1835, nor in any law since,* nor in any •other law upon our statute books. This, I think, is capable of demonstration. It is not in sections eleven to fourteen inclusive, for they relate entirely to division fences, and are a copy of the third section of the Act of 1819, of which the section in question was the first. It is not in the fifteenth section, for that is devoted entirely to the re-enactment of the second section of the same Act of 1819, and is almost a literal transcript of it, except, the words “a good and sufficient fence” are used instead of “the fence being of the aforesaid height and strength;” and this change became necessary in consequence of the repeal of the first section, which contained a minute description of the fence, to which the word “aforesaid’’ referred. But as this is the section probably relied upon, I will quote it at length. “If any horse, mare, gelding, colt, mule or ass, sheep, lamb, goat, kid, bull, cow, heifer, steer or calf, or any hog, shoat or pig, shall break into any person’s inclosure, the fence being good and sufficient, the owner of such animals shall be liable in an action of trespass, to make good all damages to the owner or occupier of such inclosure, for the first offence single damages only, and ever afterwards double the damages sustained.” Where do we find in this, any thing like a re-enactment of any portion of that first section ? I cannot read here those potent words, “that all fields and grounds kept for inclosures,shall be well inclosed with a fence” — ■ and yet there is nothing else in that first section except a description of the fence. It ought not to be contended, that the Legislature intended to re-enact both sections repealed, when they have only copied the words of one, when there is not the least similarity betvreen the two, each one performing an entirely different office; and yet this is the section manifestly relied upon ; at least there is none other that comes so near it, if it is possible'for the others to be more foreign than this. Whether this section of itself changes the the Common Law rule, I will examine presently.. I am now endeavoring to show that the first section, upon the peculiar words of which so much reliance is placed, has not been re-enácted.
The next section, which is the sixteenth, authorizes the, injured party to complain to a justice of the peace, who shall summon three householders to view the fence, and their testimony shall be good evidence touching the sufficiency of the fence. The seventeenth section provides, that if any person injured for want of a sufficient fence shall hurt any of the aforesaid animals, he shall pay the damages. And section eighteen provides, that the owners of animals trespassing shall be notified, and if they refuse to secure them, the injured party may do so, and recover compensation for their feed. This composed all there was of the Act of ’35, and all there is upon our statute book which can, by possibility, touch this question. It seems to me it would be extravagant in any one to contend, that there is anything in either of these three sections, which either directly or constructively re-enacts any portion of that first section. Indeed, they do not admit of argument either way, for the statement of their contents demonstrates the negative.
If I have succeeded in showing that the first section of the Act of ’19 has never been re-enacted, then all the argument fails which rests upon that section, and that there has been a misapprehension on that subject, it seems to me there can be no doubt. This, I believe, will be made still more apparent by what will be said, in giving my construction of those sections, which I shall now proceed to do.
Section fifteen, chapter fifty one, of the Revised Statutes, which was the first section of the Act of ’35, where it was re-enacted from the Act of ’19, has been already quoted at length, and proves that if any horse, &c., shall break into any inclosure, the fence being good and sufficient, the owner shall be liable to an action of trespass “ for the first offence, single damages only, and ever afterwards, double the damages sustained. ” Independent of any decisions which have been made in other. States upon statutes on this subject, I do not think, by any known rule of construction, this can be held to have taken away the Common Law remedy. It contains no intimation of an interest to repeal the Common Law, nor is it in any way inconsistent with it. It is clearly cumulative to the .Common Law, and not hostile. It gives an additional remedy, in the nature of a penalty, greater than was known at the Common Law, which may well exist without diminishing the Common Law right. The statute books are full of such cases, and it would be a useless waste of time to quote authorities to show that such statutes are never construed to take away Common Law remedies, in cases which do not come within the provisions of the statute, and entitle the party to a remedy under it. Manifestly, the whole object of this statute was to give the party.a right to double damages for the second and subsequent trespasses, when he entitles himself to them by keeping up a good and sufficient fence. Instead of relieving the owner of the animals from any liabilities imposed by the Common Law, it manifestly increases them. It is not for his benefit, but for the advantage of the owner of the close who will keep up a fence. The object is to encourage fencing by extraordinary rewards, and not to compel it by an abridgment of rights. It seems to me absurd to say, if a man will not entitle himself to the extraordinary remedies, tendered him by the statute, that therefore he shall be deprived of even the rights guarantied to him by the Common Law. It is asked, “ Would the Legislature be guilty of so absurd a thing as to solemnly declare, that the owner of cattle breaking into the inclosure, the fence being good and sufficient, should be liable to damages, provide for the summons of viewers to examine the fence, and leave its condition to be proved on the trial, when he would be liable, at all events, although there were no fence ? ” It is unfortunate for the argument contained in this interrogatory that the concluding words of the section, “ and ever afterwards, double the damages sustained, ” were overlooked. When we observe these, we see that the Legislature has not been guilty of so absurd a thing, as merely to reiterate a Common Law right; although such things are frequently done by very intelligent legislatures, as was the case in Massachusetts, where the enactment is substantially the same as this section omitting these concluding words, which was held to be merely declaratory of the Common Law, and not to repeal it. Rust v. Low, 6 Mass. 90. Our statute evidently meant something more, which was to give the party an additional and more salutary remedy who should entitle himself to it, by the performance of two conditions. One, the keeping up the fence, and the other the recovery of single damages, would serve as an admonition to the other party that his cattle were breachy. And this explains the reason why Common Law damages are prescribed for the first offence. The whole law is clear and intelligible, and well calculated to effect the manifest intent of the legislature, which, as before stated, was to give a new remedy under certain circumstances, without taking away the old. The sixteenth section simply prescribes the mode of proceeding under the fifteenth, and the seventeenth declares that persons injured for want of sufficient fence, shall be liable for damages done by them to animals, and the eighteenth section authorises persons trespassed upon to secure the animals, where the owners refuse to do so. But it is not, nor can it be pretended that either of these sections repeal or take away the Common Law remedy.
I have not thought it necessary to examine whether the construction given to the first section of the Act of ’19 be correct or not, but have contented.myself with showing, which I think I.have done conclusively, that it has been repealed, and has never been re-enacted. If this be so, and the construction given to that section be correct, it proves beyond controversy, that the Common Law rule is now in force, for it is a rule of construction which has been adopted by this Court, (and to which, I venture to say, no exception can be found,) that where an Act is passed in derogation of, or changing the Common Law, the repeal of súch Act affords the most conclusive proof that the Legislature intended to return to the rule of the Common Law. Bedell v. Janney, 4 Gilm. 207; Ellis v. Page, 1 Pick. 45.
As the Common Law remedy is now held to be taken away, hereafter the remedy must be sought under this statute, and, necessarily, the course prescribed by the sixteenth section must be pursued. And as a good and sufficient fence is necessary to entitle the party to recover, that, of course, ought to be averred in the declaration. , Such would, undoubtedly, be the rule, should the party seek to recover double damages under the statute, and yet no more so than when he claims single damages under the same Act. If such has been the usual practice, I am not advised of it. But I think I can see other difficulties, more embarrassing still than these, but I will not advert to them now. But it is said that our legislation on this subject clearly shows that the Legislature never supposed that this rule of the Common Law prevailed in Illinois, or intended that it should. If the Legislature always supposed that the law was as they intended it should be, this proves conclusively that they never intended to change it, for I liave yet to learn that the bare supposition of the Legislature, or their ignorance of the law, can make or change a law, a law so important as this, affecting the whole agricultural interest of the State, should only be changed by the positive action of the Legislature, clearly manifesting such intention, and hot by a doubtful supposition.
Some other portions of our statutes are referred to, not for the purpose of showing that this provision of the Common Law was thereby repealed, but in order to prove that the Legislature supposed that cattle might run at large, and that • people were bound to fence against them. The first requires castor beans to be fenced, and another forbids drovers from driving off cattle from the owner’s premises, or from the range. To these might have been added the law of 1824, requiring saltworks to be barricad cd, and the law of 1835, requiring saltpetre caves to be fenced. Admitting the inference to be correct, I have before attempted to show that it neither proves what the law is, nor alters it. But from these special Acts I draw a directly opposite conclusion.- I think they prove conclusively that the Legislature did not suppose that it was the duty of the owner of a close to fence it. If the law already required these fences to be erected, I I may well ask, “would the Legislature be guilty of so absurd a thing as to solemnly pass these special Acts, when they knew that the same thing was required by the law before ?” If without these laws, cattle had a right to run at large, and it was the duty of the owner of the premises to fence against them, and for the want of such fence, the cattle went upon the close and were damaged by the beans, the salt water, or the saltpetre, thus carelessly exposed, the owner of the premises would have been responsible for the damages. Coke’s Litt. 56, A. ; Roll’s Abr. 88; Blyth v. Topton, Cro. Jac. 158; Townsend v. Wathen, 9 East, 277; Bush v. Brainerd, 1 Cowen, 78. Nor are we to infer that the Legislature supposed cattle might lawfully run at at large, wherever they could go, because it saw fit to guard against extreme danger to such as were at large. It is well known that cattle may often break away without the fault of the owner.
But the decisions in other States upon statutes on this subject, I will not say upon statutes like ours, for they are all much stronger, are more conclusive in favor of the Common Law, than anything which I have or could say, and it seems to me should have controlled this case. I had intended to have examined these statutes and decisions minutely, but I have already said so much on this subject that I must content myself with little more than a reference to them.
In Massachusetts, the statute defines what “shall be deemed a legal and sufficient fence,” and then provides “that any person injured in his tillage, mowing or other lands under improvement, that are inclosed with a legal and sufficient fence, whether such improved lands be common or general field, or in a close by itself, by swine, sheep, horses, or neat cattle, may have his action of trespass,” &c. This statute was held to be merely an affirmance of the Common Law, and not as repealing it, and that trespass might still be maintained without a fence. 6 Mass. 90. This statute, it will be observed, is almost identical with our 15th section, except that it does not give double damages, which makes ours much stronger, as it does not leave the Legislature in the supposed dilemma of having passed a useless Act, merely affirming the Common Law. The same decision was made in Maine upon a similar statute. 5 Greenl, 356. And so also in Vermont.
The New Hampshire statute provided, “that when any damage shall be done to any person whose fences are insufficient, and such damage shall happen through the deficiency of the fences by swine yoked and ringed according to law, horses fettered, and other creatures not prohibited from feeding upon the highways or commons, the person sustaining damages may not impound the creatures so doing damage, nor shall he recover damages therefor.” It was held even under this statute, that no person was bound to fence against the highways, and it was applied alone to division fences, and yet, what is there in our statute containing so much evidence of an intent to repeal the Common Law as this ? Had there been, I might have acquiesced in silence.
The statute of New Jersey is scarcely less explicit. After defining what shall be esteemed a lawful fence, it proceeds: “And if cattle break through, they may be impounded, and if any owner of land shall neglect or refuse to make his lawful fence, he shall not recover, and the owner of the cattle may give this in evidence under the general issue.” Rev. Laws, N. J. 335, §§ 1, 9.. As in New Hampshire, this statute (it is manifestly the statute construed, although I have been unable to obtain the book referred to,) was held not to repeal the Common Law remedy, for trespass by cattle coming in from the highways or from strangers’ land, but was confined to division fences. 3 Harrison’s (N. J.) R. 368. The opinion in this case is worthy a careful perusal.
But it is said that “the Act of ’35, now constituting four sections of chapter 51, Rev. Stat., had no connection, when originally passed, with any other Act, either in reference to division fences or inclosures of common fields.” This is an entire mistake, unless an amendatory Act has no connection with the Act amended, for the Act of ’35 professed by its title to be an amendment to the Act of ’19, the third and only unrepealed section of which, is entirely devoted to division fences, and contained all the law which we now have or ever had on that subject. Besides, the first section of the Act of ’35, which is the one relied upon, was a re-enactment of the second section of the Act of ’19; so that not only is it' found in an amendment to that Act, but it originally formed a part of it, which I think makes out a pretty intimate connection with an Act in reference to division fences. This is truly an unfortunate misapprehension, for by it is lost the aid and authority of the decisions just referred to, in which their statutes were construed to apply alone to division fences, because they were originally passed in Acts regulating such fences. We now see that such is the precise case with our law, and no cases could possibly be more in point, nor can their force be explained away or avoided, unless it is upon the ground that a cumulative remedy is given, according to my former construction.
The right to allow cattle to run in the highways, and the duty to fence against them, supposed to be created by several statutes in Massachusetts, are examined with remarkable ability in the case of Stackpole v. Healey, 16 Mass. 33. Some of their statutes speak of cattle &c. going at large generally, and others of their going at large on the commons, and another law regulates the manner in which horses may go at large on the commons and ways of a town. Other laws conferred upon towns the authority to grant liberty for horses to go at large and unfettered. The Court held that none of these statutes made it lawful for animals to go at large on the highways, but only on the common lands of the town, and consequently it was not the duty of the owners of land to fence against them. I cannot refrain quoting a few passages from the Opinion of the Court, which was unanimous. They say: “Did the Legislature mean to touch rights protected by the Common Law? I may ask another question : Could they do so if they were disposed, (which is a case not to be supposed,) without making compensation to the owner? Take the case of a fruit tree standing in the road, but in a situation affording a convenient shade to the traveller ; an ornament, but nota nuisance to the way, but yielding an annual profit to the owner of the soil. Now the Legislature might, if they thought it expedient, provide by law, that for the future the soil of all highways should be vested in the public, and compensate the owner accordingly.” To show that this decision is not singular, I will refer to the case of Holliday v. Marsh, 3 Wend. 147. By the twelfth section Revised Laws, New York, 133, the inhabitants of towns are authorized to make rules for improving their common lands, and for making their partition and circular fences for their lands, gardens, orchards, See., “ and the times, places, and manner of permitting or preventing cattle, horses, sheep, swine, or any of them, to go at large," Stc. “And for ascertaining the sufficiency of all partition and other fences,” See: The seventeenth section provides “in case a person who has made his proportion of the, division fence shall conclude or be disposed to throw up his said lands or meadow to common feeding, or to let the same lay open, such person shall give three months’ notice,” &c. The Court said that these provisions did not authorize the towns to permit cattle, &c. to run at large in the highways, or'upon the lands of individuals, thus thrown up to common feeding, but apply the Common Law rule to uninclosed lands. In the Opinion of the Court, Savage, C. J., says : “Suppose a case where the town has no common land, and they pass a by-law permitting cattle to run at large ; where are they to run? Surely not on individual property. Where then? in the highway? The public have simply a right of passage over the highway j they have no right to depasture the highway. The owner of the land through-which the highway runs, is the owner of the soil and of the timber, except what is necessary to make bridges, or otherwise aid in making the highway passable. (15 Johns. 453.) And if the owner of the soil owns the timber, why not the grass ?”
Let me ask where can anything be found in our statutes, which will bear any comparison with those of Massachusetts and New York, as tending to prove either the intention or the understanding of the Legislature that cattle might run at large, either on the highway or on the uninclosed lands of individuals? Nothing has been referred to, except the law requiring castor beans to be inclosed, and the law prohibiting drovers from stealing cattle, which, as I have before attempted to show, prove the reverse. If those statutes in other States, with the strong expressions which they all contain, were held not to take away the Common Law right, how much more should our statute, which contains no such expressions, be construed in the same way. The question is constantly recurring to my own mind, by what rule of construction is it held that our statute has repealed and destroyed this universally admitted Common Law right, when no word or intimation to that effect can be, found* in it? The most and all that can be said of it is, that it has created a new right, cumulative to and perfectly consistent with the Common Law right; and when that is the case, the universal rule is that both shall stand together.
A case in the 14 Conn. R. 292, is referred to to show that the Common Law rule ought not to be enforced here. But this portion at least of the Common Law appears never to have been adopted there ; and besides, the question in that case arose about a division fence, and whether a certain creek was sufficient as such, and of course can have no application here. I may remark, further, that that case was decided by a divided Court. Nor is the case from South Carolina entitled to more consideration, for it was not pretended■ to be decided upon the English Common Law, which is not binding upon the Courts of that State. 1 Strobhart, 173; 3 Dessaussure, 427. When we adopt the Common Law of South Carolina, that case may be considered as authority.
"Although this case by itself may be insignificant, yet the principles involved are important, and I have felt that I could not say less than I have, in assigning the reasons which have led me to the conclusion at which I have arrived. 1 am of opinion that the judgment should be affirmed.
Judgment reversed.