Part 1 — CHAPTER III UNINTENDED NON-NEGLIGENT INTERFERENCE

Section I Trespass on Land by Animals

NOYES v. COLBY Supreme Court, New Hampshire, July Term, 1855. Reported in 30 New Hampshire Reports, 143.

Trespass, for breaking and entering the plaintiff’s close in Franklin.

Plea, general issue.

The plaintiff proved that towards night, on June 27, the defendant’s cow was upon his premises grazing, between his house and stable. There was no fence between his land and the highway.

The defendant then proposed to prove that, at that time he pastured his cow in a pasture, on the road to Salisbury, and that one Heath also pastured his cow in the same pasture. On the evening in question, when Heath drove home his own cow, he also let the defendant’s cow out of the pasture. He did this without the knowledge or assent of the defendant, and without any authority, and had never done so before, and after this transaction was requested by the defendant not to do so again. He drove the cow down the road until she came to the point where it connects with the road through the village of Franklin, about two hundred feet from the plaintiff’s land, when she strayed along the road and committed the trespass complained of.

The defendant contended that, under such circumstances he could not be held to be a trespasser merely from the fact that he owned the cow; that he had done no wrongful or improper act; that the act of Heath, being without his knowledge or assent, and without his authority, could not make him liable in trespass; that the action should not have been brought against him, but if any trespass had been committed, should have been brought against Heath.

There being no dispute about the facts, the Court ruled that the action could not be maintained; whereupon a verdict was taken for the defendant, upon which judgment was to be rendered, or it was to 405be set aside, and judgment rendered for the plaintiff for twenty-five cents damages, as this Court might order.^[251]

Woods, C. J. “A man is answerable for not only his own trespass, but that of his cattle also; for if by his negligent keeping they stray upon the land of another (and much more if he permits or drives them on), and they there tread down his neighbor’s herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages.” 3 Black. Com. 211. Such is the law as stated in the words of the author of the Commentaries, which are themselves very high authority on such subjects, and such has been the uniform practice and understanding of the law in all times, so far as the books show, and it is therefore too late to inquire whether the remedy by an action of trespass is founded upon the strictest logical propriety, where the cause of the damage is the negligence, and not the wilful act of the owner of the mischievous beasts.

It is hardly necessary to remark, but for the course of the defendant’s argument, that the proposition quoted from Blackstone relates to the case in which the beasts “stray upon, the land of another,” and not to the case in which they are driven upon it by a stranger; for then the stranger is the author of the wrong, and the horse that he rides, or drives, is the mere passive instrument in his hands, and the owner of it, unless he have lent it for the purpose of the wrong, is as wholly guiltless as any other person. For in that case, the beast does not by the owner’s negligent keeping stray upon the land of his neighbors.

It is substantially upon this ground that Tewksbury v. Bucklin, 7 N. H. Rep. 518, was decided; in which it was held that a party having the custody of the cattle was answerable for the trespass which they committed by straying upon another’s inclosure.

The case finds that the cow “strayed along the road,” and committed the act complained of. It would not be just to hold the party to the strict meaning of a single word, if it appeared by the context to have been used inaccurately; but it appears distinctly that the animal, although driven by Heath some distance from the pasture in the direction of the locus in quo, was not driven upon it so as to be in his hands a mere instrument for committing a trespass. Heath’s trespass was upon the chattel of the defendant, but not upon the soil of the plaintiff. He abandoned the cow, and she being no longer in his custody, “strayed,” and involved the owner in the consequences ordinarily incident to permitting beasts to stray into the inclosures of others.

When Heath abandoned the cow, she was about twelve rods from the lands of the plaintiff. From that period she was no longer under the control of Heath, but was again in the legal possession of the defendant, and under his general custody and control; and like other 406owners having the care and custody of their beasts at the time, he is answerable in trespass for her act in straying upon the close in question, and grazing there.

For misdirection of the judge who tried the cause, the verdict must be set aside, and a

New trial granted.^[252]

Beardsley, C. J., in TONAWANDA R. CO. v. MUNGER (1848) 5 Denio, 255, 267–268.

The Court seem to have held that if the plaintiff’s oxen escaped from his enclosure after the exercise of “ordinary care and prudence in taking care of” them, he was not responsible for their trespass on the defendants’ land. This view of the law, we think, cannot be sustained. The plaintiff was bound at his peril to keep his cattle at home, or at all events to keep them out of the defendants’ close, and no degree of “care and prudence,” if the cattle found their way onto the defendants’ land, would excuse the trespass. It would be a new feature in the law of trespass, if the owner of cattle could escape responsibility for their trespasses by showing he had used “ordinary,” or even extraordinary “care and prudence” to keep them from doing mischief.^[253]

TILLETT v. WARD In the Queen’s Bench Division, November 27, 1882. Reported in Law Reports, 10 Queen’s Bench Division, 17.

Appeal by special case from the decision of the judge of the County Court of Lincolnshire, holden at Stamford.

The action was to recover £1 for the damage done to goods in the plaintiff’s shop.

407It appeared that on the 15th of May, 1882, an ox of the defendant was being driven from the live-stock market in Broad Street, Stamford, along a public street called Ironmonger Street, to the defendant’s premises. Ironmonger Street has a paved carriage road with a foot pavement on either side, and the plaintiff was the occupier of an ironmonger’s shop in the street. The ox, after having gone for some distance down the paved carriage road of Ironmonger Street, driven by the defendant’s men, went for a short distance upon the foot pavement on the near or left-hand side, and was driven therefrom by one of the drovers in charge on to the carriage road, and after continuing for a farther distance upon such carriage road, turned again on the pavement about twelve yards from the plaintiff’s shop, and continued upon the pavement until it came opposite the plaintiff’s shop, when it passed through the open doorway into the shop and did damage to goods therein to the amount claimed. The ox was, as soon as possible after such entry and damage, driven by the defendant’s men from the shop to the carriage road and to defendant’s premises in another street; but they did not succeed in getting it out until about three-quarters of an hour from the time when it entered. No special act of negligence was proved on the part of the persons in charge of the ox, and there was no evidence that it was of a vicious or unruly nature, or that the defendant had any notice that there was anything exceptional in its temper or character, or that it would be unsafe to drive it through the public streets in the ordinary and usual way. It was proved that at the time the ox left the carriage-way the second time, one of the two men of the defendant in charge of the animal was walking by its side, having his hand upon it, and that the other man was walking about three yards in the rear of it. The two men in charge proved that they drove it unaccompanied by other cattle from the market, and they both declared that they did all they could under the circumstances to prevent it going on to the foot pavement and entering the open doorway of the plaintiff’s shop, and they stated that the movement of the ox from the carriage-way on to the foot pavement was sudden and could not by any reasonable or available means have been prevented. It was alleged by the defendant’s witnesses, and not contradicted, that it was a usual thing for several oxen to be driven from the Stamford market in charge of two men, and sometimes one man. It was admitted that it was not customary to drive oxen with halters, and that they would probably not go quietly if led by halters.

The County Court judge gave a verdict for the amount claimed, giving the defendant leave to appeal.

The question for the opinion of the Court was, whether upon the facts the plaintiff was entitled to the verdict.^[254]

408Lord Coleridge, C. J. In this action the County Court judge has found as a fact that there was no negligence on the part of the drivers of the ox, or, at all events, he has not found that there was negligence, and as it lies on the plaintiff to make out his case, the charge of negligence, so far as it has any bearing on the matter, must be taken to have failed.

Now, it is clear as a general rule that the owner of cattle and sheep is bound to keep them from trespassing on his neighbor’s land, and if they so trespass an action for damages may be brought against him, irrespective of whether the trespass was or was not the result of his negligence. It is also tolerably clear that where both parties are upon the highway, where each of them has a right to be, and one of them is injured by the trespass of an animal belonging to the other, he must, in order to maintain his action, show that the trespass was owing to the negligence of the other or of his servant. It is also clear that where a man is injured by a fierce or vicious animal belonging to another, that prima facie no action can be brought without proof that the owner of the animal knew of its mischievous tendencies.

In the present case the trespass, if there was any, was committed off the highway upon the plaintiff’s close, which immediately adjoined the highway, by an animal belonging to the defendant which was being driven on the highway. No negligence is proved, and it would seem to follow from the law that I have previously stated that the defendant is not responsible. We find it established as an exception upon the general law of trespass, that where cattle trespass upon unfenced land immediately adjoining a highway the owner of the land must bear the loss. This is shown by the judgment of Bramwell, B., in Goodwyn v. Cheveley, 28 L. J. (Ex.) 298. That learned judge goes into the question whether a reasonable time had or had not elapsed for the removal of cattle who had trespassed under similar circumstances, and this question would not have arisen if a mere momentary trespass had been by itself actionable. There is also the statement of Blackburn, J., in Fletcher v. Rylands, L. R. 1 Ex. 265, that persons who have property adjacent to a highway may be taken to hold it subject to the risk of injury from inevitable risk. I could not, therefore, if I were disposed, question law laid down by such eminent authorities, but I quite concur in their view, and I see no distinction for this purpose between a field in the country and a street in a market town. The accident to the plaintiff was one of the necessary and inevitable risks which arise from driving cattle in the streets in or out of town. No cause of action is shown, and the judgment of the County Court judge must be reversed.

Stephen, J. I am of the same opinion. As I understand the law, when a man has placed his cattle in a field it is his duty to keep them from trespassing on the land of his neighbors, but while he is driving them upon a highway he is not responsible, without proof of negligence 409on his part, for any injury they may do upon the highway, for they cannot then be said to be trespassing. The case of Goodwyn v. Cheveley, supra, seems to me to establish a further exception, that the owner of the cattle is not responsible without negligence when the injury is done to property adjoining the highway,—an exception which is absolutely necessary for the conduct of the common affairs of life. We have been invited to limit this exception to the case of high roads adjoining fields in the country, but I am very unwilling to multiply exceptions, and I can see no solid distinction between the case of an animal straying into a field which is unfenced or into an open shop in a town. I think the rule to be gathered from Goodwyn v. Cheveley, supra, a very reasonable one, for otherwise I cannot see how we could limit the liability of the owner of the cattle for any sort of injury which could be traced to them.

Judgment for defendant.^[255]

COOLEY ON TORTS, 2d ed., 398–400.

The statutes which, under some circumstances, or for some purposes, require lands to be fenced by their owners, are so various in the several States that it is not easy even to classify them. Some of them provide merely that unless the owner shall cause his lands to be fenced with such a fence as is particularly described, he shall maintain no action for the trespasses of beasts upon them. These statutes are generally limited in their force to exterior fences, and are intended as a part of a system under which cattle are or may be allowed to depasture the highway. In some States, from the earliest days, beasts have been allowed to roam at large in the highways and unenclosed lands, either by general law or on a vote of the township or county to that effect; a futile permission, if owners of lands are not required to fence against them. A more common provision is one requiring the owners of adjoining premises to keep up, respectively, one-half the partition fence between them, this being apportioned for the purpose by agreement, by prescription, or by the order of fence-viewers. A neglect of duty under these statutes would not only preclude the party in fault from maintaining suit for injuries suffered by himself in consequence thereof, but it would seem that if the domestic animals of his neighbor should wander upon his lands, invited by his own neglect, and should there fall into pits, or otherwise receive injury, he would be responsible for this injury, as one occurring proximately from his own default. The statutes which require the construction of partition fences do so for the benefit exclusively of the adjoining proprietors. These proprietors may, at their option, by agreement, dispense with them, and even if they do not agree to do so, but fail to maintain them as the law contemplates, still, if the cattle of the 410third persons come wrongfully upon one man’s lands, and from there enter the adjoining enclosure, it is no answer to an action of trespass brought by the owner of the latter that the partition fence provided for by the law was not maintained.^[256]

WAGNER v. BISSELL Supreme Court, Iowa, December Term, 1856. Reported in 3 Iowa Reports, 396.

Appeal from the Jones District Court.

This was an action of replevin for certain cattle. Defendant answered, denying the plaintiff’s right to the possession, and also alleging as a special ground of defence, that said cattle (which he admits to be the property of plaintiff) did on the 17th day of August, 1856, trespass upon the uninclosed land of defendant, and while so trespassing, and after he had suffered damage to the amount of fifty dollars, he, said defendant, distrained the same, as he had a right to do; and while thus lawfully distrained, and while he thus rightfully had the possession, the said plaintiff replevied the said cattle, without paying, or offering to pay, for the damages sustained. To this answer the plaintiff demurred, which was sustained. Defendant refused to answer over, and judgment being against him, he appeals.^[257]

Wright, C. J. [After deciding a point of pleading.] There is then but one question in the case, and that is, whether the defendant, for the reasons stated in his answer, was entitled to the possession of the property, as against the plaintiff and owner. We are of opinion that he was not, and that the demurrer was therefore properly sustained.

That at common law, every man was bound to keep his cattle within his own close, under the penalty of answering in damage for all injuries 411arising from their being abroad, is admitted by all. And a part of the same rule is, that the owner of land is not bound to protect his premises from the intrusion of the cattle of a stranger, or third person; and that if such cattle shall intrude or trespass upon his premises, whether inclosed or not, he may, at his election, bring his action to recover the damages sustained, or distrain such trespassing animals, until compensated for such injury. We need not at present stop to ascertain the origin or reason of this rule. It is sufficient to say, that as a principle of the common law, it is well, and we believe universally settled. We are then led to inquire, whether, independent of any statutory provisions, this rule is applicable to our condition and circumstances as a people; and if it is, then whether it has or has not, been changed by legislative action.

Unlike many of the States, we have no statute declaring in express terms the common law to be in force in this State. That it is, however, has been frequently decided by this Court, and does not, perhaps, admit of controversy. But while this is true, it must be understood that it is adopted only so far as it is applicable to us as a people, and may be of a general nature. At this time we need only discuss the question whether the principle contended for is applicable; for there can be no fair ground for claiming that it is not of a general nature.

We have assumed that it is only so much of the common law as is applicable that can be said to be in force, or recognized as a rule of action in this State. To say that every principle of that law, however inapplicable to our wants or institutions, is to continue in force, until changed by some legislative rule, we believe has never been claimed, neither indeed could it be, with any degree of reason. What is meant however, by the term “applicable,” has been thought to admit of some controversy. As stated by Catron, J., in the dissenting opinion in the case of Seely v. Peters, 5 Gilm. 130, “Does it mean applicable to the nature of our political institutions, and to the genius of our republican form of government, and to our Constitution, or to our domestic habits, our wants, and our necessities?” He then maintains that the former only is meant, and that to adopt the latter is a clear usurpation of legislative power by the courts. A majority of the Court held in that case, however, as had been previously decided in Boyer v. Sweet, 3 Scam. 121, “that in adopting the common law, it must be applicable to the habits and condition of our society, and in harmony with the genius, spirit, and objects of our institutions.” And we can see no just or fair objection to this view of the subject. Indeed, there would seem to be much propriety in saying that the distinction attempted is more speculative than practical or real. For what is applicable to our wants, habits, and necessities as a community or state, must necessarily to some extent be determined from the nature and genius of our government and institutions. Or, in other words, 412to determine whether a particular principle harmonizes with the spirit of our institutions, we must look to the habits and condition of the society which has created and lived under these institutions. We have adopted a republican form of government, because we believe it to be better suited to our condition, as it is to that of all people,—and thereunder we believe our wants, rights, and necessities, as individuals and as a community, are more likely to be protected and provided for. And the conclusion would seem to fairly follow, that a principle or rule which tends to provide for, and protect our rights and wants, would harmonize with that form of government or those institutions which have grown up under it.

But, however this may be, we do not believe that in determining as a Court, whether a particular rule of the unwritten law is applicable, we are confined alone to its agreement or disagreement with our peculiar form of government. To make the true distinction between the rules which are, and are not, applicable, may be frequently embarrassing and difficult to courts.

Where the common law has been repealed or changed by the constitutions of either the States or national government, or by their legislative enactments, it is, of course, not binding. So also, it is safe to say, that where it has been varied by custom, not founded in reason, or not consonant to the genius and manners of the people, it ceases to have force. Bouvier’s Law Dict., title Law, Common. And in accordance with this position, are the following authorities: “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.” Van Ness v. Packard, 2 Peters, 137. And see other remarks of the learned judge, in delivering the opinion in that case, page 143, which have a bearing upon the principal question involved in this.

In Goring v. Emery, 16 Pick. 107, in speaking of what parts of the common law and the statutes of England are to be taken as in force in Massachusetts, Shaw, C. J., says: “That what are to be deemed in force is often a question of difficulty, depending upon the nature of the subject, the difference between the character of our institutions, and our general course of policy, and those of the parent country, and upon fitness and usage.” And in The Commonwealth v. Knowlton, 2 Mass. 534, it is said that “our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were adjudged inapplicable to their new state and condition.”

In Ohio the rule is laid down as follows: “It has been repeatedly decided by the courts of this State that they will adopt the principles of the common law, as the rule of decision, so far only as those principles are adapted to our circumstances, state of society, and form 413of government.” Lindsley v. Coats, 1 Ham. 243; see also Penny v. Little, 3 Scam. 301.

Is the rule of the common law, relied upon by the appellant in this case, applicable to our situation, condition, and usage, as a people? Is it in accordance with our habits, wants, and necessities? As applied to this State, is it founded in reason and the fitness of things? The legislature has certainly not so regarded it. On the contrary, we hope to be able to show that what legislation we have clearly recognizes the opposite rule. At present, we are considering the question without reference to any legislative interpretation or action.

These same inquiries were substantially discussed in the case of Seely v. Peters, above referred to; and as we could not hope to answer them more satisfactorily than is there done, we adopt the language used in that case, the appropriateness of which, as applied to this State, will be fully appreciated when we reflect that in their resources and necessities, Illinois and Iowa are almost twin sisters. Both alike are agricultural States—both alike have large and extensive prairies—and are alike destitute of timber, as compared with the eastern and older States of the Union.

Says Trumbull, J., in delivering that opinion: “However well adapted the rule of the common law may be to a densely populated country like England, it is surely but ill-adapted to a new country like ours. If this common-law rule prevails now, it must have prevailed from the time of the earliest settlement of the State, and can it be supposed that when the early settlers of this country located upon the borders of our extensive prairies, that they brought with them, and adopted as applicable to their condition, a rule of law requiring each one to fence up his cattle? that they designed the millions of fertile acres stretched out before them, to go ungrazed, except as each purchaser from the government was able to inclose his part with a fence? This State is unlike any of the eastern States in their early settlement, because, from the scarcity of timber, it must be many years yet before our extensive prairies can be fenced; and their luxuriant growth, sufficient for thousands of cattle, must be suffered to rot and decay where it grows, unless settlers upon their borders are permitted to turn their cattle upon them. Perhaps there is no principle of the common law so inapplicable to the condition of our country and the people as the one which is sought to be enforced now, for the first time, since the settlement of the State. It has been the custom of Illinois, so long that the memory of man runneth not to the contrary, for the owners of stock to suffer them to run at large. Settlers have located themselves contiguous to prairies, for the very purpose of getting the benefit of the range. The right of all to pasture their cattle upon uninclosed ground is universally conceded. No man has questioned this right, although hundreds of cases must have occurred where the owners of cattle have escaped the payment of damages on 414account of the insufficiency of the fences through which their stock have broken; and never till now has the common-law rule that the owner of cattle is bound to fence them up been suffered to prevail, or to be applicable to our condition. The universal understanding of all classes of community, upon which they have acted by inclosing their crops and letting their cattle run at large, is entitled to no little consideration in determining what the law is; and we should feel inclined to hold, independent of any statutes upon the subject, on account of the inapplicability of the common-law rule to the condition and circumstances of our people, that it does not, and never has, prevailed in Illinois.”

The learned judge then proceeds to show that it is not necessary to assume that ground in the case before him, for the reason, as he says, that their entire legislation clearly shows that this rule of the common law never prevailed in that State. In like manner, we now propose to refer to some of our own legislation which, we think, will clearly show that it was never supposed to prevail in this State. [Here Wright, C. J., stated, and commented upon, various statutes.]

This brief reference to these several acts must be sufficient, in our opinion, to satisfy any mind that the legislature never understood that the rule of the common law prevailed in this State. We do not maintain that these provisions expressly change the common-law rule. And did we believe that this principle had, at any time, been well established in this State, we should perhaps hold that it had not been changed by these different statutes. Where, however, it is, to say the least, doubtful whether the rule contended for is in accordance with our situation, condition, and wants as a people, where for a series of years there has been no legislation recognizing the existence of such a rule, and where custom and habit have uniformly negatived its existence, we feel entirely justified in giving force to these acts which, if they do not expressly, certainly do impliedly, change the unwritten law.

Judgment affirmed.^[258]

415 BEINHORN v. GRISWOLD Supreme Court, Montana, July 14, 1902. Reported in 27 Montana Reports, 79.

Pigott, J.^[259] Action to recover damages for injuries alleged to have been caused by the negligence of the defendant. The complaint states that the defendant negligently left exposed a vat containing poisonous liquid; that by reason of such negligence certain cattle of plaintiff and of one Holm drank from the vat some of the liquid, and died from the effects of the poison; and that Holm assigned his demand for damages to the plaintiff. The answer puts in issue the allegation of negligence, and avers that the death of the cattle was caused by the carelessness of the plaintiff and Holm. The plaintiff secured a judgment, and the defendant moved for a new trial on several grounds, one being the insufficiency of the evidence to prove negligence on the part of the defendant. From the order denying a new trial the defendant has appealed.

The facts upon which the plaintiff bases his allegations of negligence are substantially these: During the year 1898 the defendant was the lessee in possession of the Non-Such gold mine and mill site. The property was not inclosed by a legal fence. For the proper conduct of his mining operations he employed the cyanide process, using large quantities of poisonous chemicals, consisting principally of cyanide of potassium, which he diluted with water, and kept in suitable receptacles on the surface of the mining property, but not sufficiently covered to prevent easy access to the poisonous solution. In appearance it resembled water. Cattle of the plaintiff and of Holm, while ranging on the public domain, wandered over to and upon the defendant’s mine and mill site, and there drank the poisonous liquid contained in the vats or tubs. The defendant knew that the cattle were in the habit of straying upon his uninclosed property, and he had driven them away whenever he saw them there.

The plaintiff insists there is but one question involved, which he states thus: Is a “landowner who negligently leaves exposed upon his uninclosed premises, where he knows stock are wont to stray, dangerous places or substances, whereby another’s cattle, straying thereon, are injured, liable for such injury?” He argues that, as the defendant’s 416mining property was not inclosed by a legal fence, the cattle were not trespassing upon his property, but were rightfully thereon, and that therefore he owed to the plaintiff the duty so to use his property and conduct his business as not to injure the plaintiff’s cattle; that, in failing to cover the poisonous solution so as to prevent the cattle from drinking of it, he violated this alleged duty, and as such negligence resulted in the death of the cattle, and consequent loss to the plaintiff, the defendant is liable in damages. In support of his contention the plaintiff cites Monroe v. Cannon, 24 Montana Reports, 316 (61 Pac. 863, 81 Am. St. Rep. 439), where the owner of pasture land was held entitled to recover the value of grass consumed by bands of sheep deliberately and intentionally driven on it by the herder in charge of them; the opinion containing the following language: “If in the case now under consideration the damage sustained by respondent had resulted from trespasses committed by cattle or sheep or other animals named in the statute, lawfully at large, and not under the direction and control of their owner, then appellant’s position would be sound.” Neither this language, nor anything said in the opinion, lends countenance to the contention of the plaintiff in the case at bar. The decision does not declare or define any duty owing by the landowner to the owner of straying cattle. These observations apply also to Section 3258 of the Political Code, which reads: “If any cattle, horse, mule, ass, hog, sheep, or other domestic animal break into any inclosure, the fence being legal, as hereinbefore provided, the owner of such animal is liable for all damages to the owner or occupant of the inclosure which may be sustained thereby. This section must not be construed so as to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law.” Even if it be conceded that the cattle of the plaintiff were not wrongfully upon defendant’s property, no liability would be incurred from the fact that they were injured while there, unless it was the defendant’s duty to protect from injury all cattle on his property whose trespass was not of such a nature as to render their owners liable for the trespass. Counsel for the plaintiff urge that, if these cattle were not wrongfully on the defendant’s property, they must have been rightfully there; asserting that if there was no remedy by action, there could not be a trespass. To this we cannot yield assent.

The owner is entitled to the exclusive possession of his land, whether fenced or not; and it is beyond the power of the legislature to prescribe, or of custom to create, a right in another to occupy the land or enjoy its fruits. Either written law or custom may withhold from the owner who does not fence his land a remedy for loss suffered by reason of casual trespasses by cattle which stray upon it, and may give a remedy for such trespasses to those only who inclose their land. By custom as well as by statute the common law of England has been so modified in Montana. This is undoubtedly a legitimate 417exercise of the police power. It falls far short, however, of conferring a legal right to dispossess the nonfencing owner. He may at pleasure lawfully drive the intruding cattle from his land, and keep them away from it. This is his right, for the cattle are trespassing. The owners of domestic animals hold no servitude upon or interest, temporary or permanent, in the open land of another, merely because it is open. If the landowner fails to “fence out” cattle lawfully at large, he may not successfully complain of loss caused by such live stock straying upon his uninclosed land. For under these circumstances the trespass is condoned or excused,—the law refuses to award damages. While the landowner, by omitting to fence, disables himself from invoking the remedy which is given to those who inclose their property with a legal fence, and while the cattle owner is thereby relieved from liability for casual trespasses, it is nevertheless true that the cattle owner has no right to pasture his cattle on the land of another, and that cattle thus wandering over such lands are not rightfully there. They are there merely by the forbearance, sufferance, or tolerance of the nonfencing landowner; there they may remain only by his tolerance.

The cattle-owning plaintiff did not owe to the land-owning defendant the duty to fence his cattle in; the latter did not owe to the former the duty to fence them out; neither of them was under obligation to the other in that regard. The defendant is not liable in this action unless he was negligent. There cannot be negligence without breach of duty. Hence, manifestly, the defendant was not guilty of negligence in omitting to prevent the plaintiff’s cattle from going upon his unfenced land.

As has just been said, the straying of the plaintiff’s cattle upon the defendant’s land did not involve the violation of any legal duty upon the part of the defendant. There would therefore seem to be no basis for the plaintiff’s charge of negligence on the part of the defendant, unless it consists in the defendant’s alleged failure to protect the cattle from injury while on his land. The damage resulted from a permissive, not an active, cause of injury. We are asked to hold that the law imposed upon the defendant, in addition to the duty of refraining from intentional or wanton injury to the cattle, the duty so to use his property and so to conduct his mining operations thereon as to avoid all dangers to which these trespassing beasts might expose themselves. Counsel invoke the provisions of Section 2296 of the Civil Code, which is declaratory of the common law: “Every one is responsible ... for an injury occasioned to another by his want of ordinary care or skill in the management of his property....” Giving to the principle thus expressed full recognition, and measuring the rights of the parties by the test of negligence thus furnished, we are unable to find in the record evidence of acts or omissions by the defendant constituting negligence in the management of his property. But the plaintiff contends that, irrespective of Section 2296, the defendant 418has been guilty of negligence in so using his property as to imperil, and in this case actually injure, the property of another. We think the principles which he invokes have no application to the facts disclosed by the record. To a naked trespasser or mere licensee by sufferance (if the expression may correctly be used) the landowner owes the duty to refrain from any wilful or wanton act causing injury to his person or chattels, and, after discovering that the trespasser is in imminent danger or immediate peril, to use reasonable care to avoid an active cause of injury. Egan v. Montana Central Railway Co., 24 Montana Reports, 569, 63 Pac. 831. The rule is different in respect of those who go upon property because of the owner’s invitation, either express or implied. As to such persons he is bound, at his peril, to use reasonable care and diligence in keeping his property in safe condition. To a mere licensee or naked trespasser the landowner does not owe the active duty of being diligent or using care in providing against the danger of accident. The distinction is well expressed in Sweeny v. Old Colony & Newport Railroad Co., 10 Allen, 368, 87 Am. Dec. 644:

[A long quotation from the opinion in that case is omitted.]

The methods pursued by the defendant in the management and use of his property involved no danger to the plaintiff or his cattle, nor exposed either to risk, so long as he and they remained within the limits of the plaintiff’s rights. The contention of the plaintiff rests upon the erroneous theory, heretofore considered, that the cattle owners hold a personal servitude upon, or the right of commons or profit in, all unfenced land, by virtue of which they are supposed to be entitled, as of right, to use for grazing and pasture all of the uninclosed lands of other persons. Such burden upon or easement in gross in open lands has not been granted, and does not exist. We have already decided that such use, while it does not constitute an actionable wrong, is not the exercise of a legal right; and as the cattle owner possessed no right to have his live stock upon the defendant’s land, and the latter was clothed with the unquestioned right to drive them away because they were not rightfully there, clearly the defendant had no active duty in respect of them while there. He was, of course, bound to refrain from intentional or wanton injury; if he stood by and knowingly permitted them to drink of the poisonous solution, without making an effort to prevent them from doing so, he might, perhaps, be liable; but neither of these conditions is in the case at bar.

We think there is no proof in the record which justifies the application of the doctrine of invitation, enticement, allurement or attraction. Deane v. Clayton, 7 Taunt. 489, 531, 533; Jordin v. Crump, 8 Mees. & W. 782; Ponting v. Noakes, (1894) 2 Q. B. 281; Stendal v. Boyd, 67 Minn. 279, 69 N. W. 899; Twist v. Railroad Co., 39 Minn. 164, 39 N. W. 402, 12 Am. St. Rep. 626. The soundness of the principles 419upon which the so-called “turn-table” and similar cases are supported is not presented for decision.

We have read the opinions which are opposed to the conclusions here announced. They need not be referred to or discussed. We are entirely satisfied that our conclusions are based upon correct fundamental principles.

The order refusing a new trial is reversed, with costs to the appellant, and the cause is remanded.

Reversed and remanded.^[260]

Mr. Chief Justice Brantly: I concur.

Mr. Justice Milburn: Considering only the facts appearing in this case, I concur in the reversal of the order denying a new trial. I do not concur in all that is said in the opinion with reference to absence of duty owing by one person to another who is trespassing upon the premises of the former, or to the owner of live stock which wander upon such premises.

Section II Injuries by Animals

MAY v. BURDETT In the Queen’s Bench, June 2, 1846. Reported in 9 Queen’s Bench Reports (Adolphus & Ellis, N. S.), 101.

Case. The declaration stated that defendant, “before and at the time of the damage and injury hereinafter mentioned to the said Sophia, the wife of the said Stephen May, wrongfully, and injuriously kept a certain monkey, he the defendant well knowing that the said monkey was of a mischievous and ferocious nature, and was used and accustomed to attack and bite mankind, and that it was dangerous and improper to allow the monkey to be at large and unconfined; which said monkey, whilst the said defendant kept the same as aforesaid, heretofore and before the commencement of this suit, to wit, on the 2d of September, 1844, did attack, bite, wound, lacerate, and injure the said Sophia, then and still being the wife of said Stephen May, whereby the said Sophia became and was greatly terrified and alarmed, and became and was sick, sore, lame, and disordered, and so remained and continued for a long time, to wit, from the day and year last aforesaid to the time of the commencement of this suit; whereby, 420and in consequence of the alarm and fright occasioned by the said monkey so attacking, biting, wounding, lacerating, and injuring her as aforesaid, the said Sophia has been greatly injured in her health,” &c.

Plea, not guilty. Issue thereon.

On the trial, before Wightman, J., at the sittings in Middlesex, after Hilary term, 1845, a verdict was found for the plaintiff with £50 damages. Cockburn, in the ensuing term, obtained a rule to show cause why judgment should not be arrested.

[The cause was argued] before Lord Denman, C. J., Patteson, J., Coleridge, J., and Wightman, J.^[261]

Lord Denman, C. J., now delivered the judgment of the Court.

This was a motion to arrest the judgment in an action on the case for keeping a monkey which the defendant knew to be accustomed to bite people, and which bit the female plaintiff. The declaration stated that the defendant wrongfully kept a monkey, well knowing that it was of a mischievous and ferocious nature and used and accustomed to attack and bite mankind, and that it was dangerous to allow it to be at large; and that the monkey, whilst the defendant kept the same as aforesaid, did attack, bite, and injure the female plaintiff, whereby, &c.

It was objected on the part of the defendant that the declaration was bad for not alleging negligence or some default of the defendant in not properly or securely keeping the animal; and it was said that, consistently with this declaration, the monkey might have been kept with due and proper caution, and that the injury might have been entirely occasioned by the carelessness and want of caution of the plaintiff herself.

A great many cases and precedents were cited upon the argument; and the conclusion to be drawn from them appears to us to be that the declaration is good upon the face of it; and that whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities.

The precedents, both ancient and modern, with scarcely an exception, merely state the ferocity of the animal and the knowledge of the defendant, without any allegation of negligence or want of care. A great many were referred to upon the argument, commencing with the Register and ending with Thomas v. Morgan, 2 C. M. & R. 496; S. C. 5 Tyr. 1085; and all in the same form, or nearly so. In the Register, 110, 111, two precedents of writs are given, one for keeping a dog accustomed to bite sheep, and the other for keeping a boar accustomed to attack and wound other animals. The cause of action, as stated in 421both these precedents, is the propensity of the animals, the knowledge of the defendant, and the injury to the plaintiff; but there is no allegation of negligence or want of care. In the case of Mason v. Kneeling, reported in 1 Ld. Ray. and 12 Mod., and much relied upon on the part of the defendant, want of due care was alleged, but the scienter was omitted; and the question was, not whether the declaration would be good without the allegation of want of care, but whether it was good without the allegation of knowledge, which it was held that it was not. No case was cited in which it had been decided that a declaration stating the ferocity of the animal and the knowledge of the defendant was bad for not averring negligence also; but various dicta in the books were cited to show that this is an action founded on negligence, and therefore not maintainable unless some negligence or want of care is alleged.

In Comyns’ Digest, tit. Action upon the Case for Negligence (A 5), it is said that “an action upon the case lies for a neglect in taking care of his cattle, dog, &c.;” and passages were cited from the older authorities, and also from some cases at nisi prius, in which expressions were used showing that, if persons suffered animals to go at large, knowing them to be disposed to do mischief, they were liable in case any mischief actually was done; and it was attempted to be inferred from this that the liability only attached in case they were suffered to go at large or to be otherwise ill secured. But the conclusion to be drawn from an examination of all the authorities appears to us to be this: that a person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril, and that if it does mischief, negligence is presumed, without express averment. The precedents as well as the authorities fully warrant this conclusion. The negligence is in keeping such an animal after notice. The case of Smith v. Pelah, 2 Stra. 1264, and a passage in 1 Hale’s Pleas of the Crown, 430,^[262] put the liability on the true ground. It may be that if the injury was solely occasioned by the wilfulness of the plaintiff after warning, that may be a ground of defence, by plea in confession and avoidance; but it is unnecessary to give any opinion as to this; for 422we think that the declaration is good upon the face of it, and shows a prima facie liability in the defendant.

It was said, indeed, further, on the part of the defendant, that, the monkey being an animal ferae naturae, he would not be answerable for injuries committed by it if it escaped and went at large without any default on the part of the defendant, during the time it had so escaped and was at large, because at that time it would not be in his keeping nor under his control; but we cannot allow any weight to this objection; for, in the first place, there is no statement in the declaration that the monkey had escaped, and it is expressly averred that the injury occurred whilst the defendant kept it; we are besides of opinion, as already stated, that the defendant, if he would keep it, was bound to keep it secure at all events.

The rule therefore will be discharged.

Rule discharged.^[263]

FILBURN v. PEOPLE’S PALACE AND AQUARIUM COMPANY, LIMITED In the Court of Appeal, June 30, 1890. Reported in Law Reports, 25 Queen’s Bench Division, 258.

Appeal from a judgment of Day, J.

The action was brought to recover damages for injuries sustained by the plaintiff by his being attacked by an elephant, which was the property of the defendants, and was being exhibited by them. The learned judge left three questions to the jury: whether the elephant was an animal dangerous to man; whether the defendant knew the elephant to be dangerous, and whether the plaintiff brought the attack on himself. The jury answered all three questions in the negative. The learned judge entered judgment for the plaintiff for a sum agreed upon in case the plaintiff should be entitled to recover.

The defendants appealed.

Lockwood, Q. C., and Cyril Dodd, Q. C., in support of the appeal. There are certain animals recognized as being of an untamable nature, and these a person keeps at his peril. In Hale’s Pleas of the Crown (vol. i, p. 430), it is said: “Tho’ he have no particular notice that he did any such thing before, yet if it be a beast, that is ferae naturae, as a lion, a bear, a wolf, yea an ape or a monkey, if he get 423loose and do harm to any person, the owner is liable to an action for the damage.” There is, however, no hard and fast line which prevents an animal ferae naturae ceasing to belong to that class and becoming domesticated. The distinction is drawn in Rex v. Huggins, 2 Ld. Raym. 1574, where it is said: “There is a difference between beasts that are ferae naturae, as lions and tygers, which a man must always keep up at his peril; and beasts that are mansuetae naturae, and break through the tameness of their nature, such as oxen and horses. In the latter case an action lies, if the owner has had notice of the quality of the beast; in the former case an action lies without such notice.” All animals are wild by nature, and the reason for the distinction is, that some of them are treated as domesticated, because they have been tamed and are used in the service of man. Though there are wild elephants, just as there are wild oxen and horses, a great number have been tamed, and are used in the service of man; and the same ruling should apply to individuals of this class as to domesticated animals generally. The jury have negatived any knowledge on the part of the defendants of any dangerous character in this elephant, and they are, under these circumstances, entitled to the verdict.

Lord Esher, M. R. The only difficulty I feel in the decision of this case is whether it is possible to enunciate any formula under which this and similar cases may be classified. The law of England recognizes two distinct classes of animals; and as to one of those classes, it cannot be doubted that a person who keeps an animal belonging to that class must prevent it from doing injury, and it is immaterial whether he knows it to be dangerous or not. As to another class, the law assumes that animals belonging to it are not of a dangerous nature, and any one who keeps an animal of this kind is not liable for the damage it may do, unless he knew that it was dangerous. What, then, is the best way of dealing generally with these different cases? I suppose there can be no dispute that there are some animals that every one must recognize as not being dangerous on account of their nature. Whether they are ferae naturae so far as rights of property are concerned is not the question; they certainly are not so in the sense that they are dangerous. There is another set of animals that the law has recognized in England as not being of a dangerous nature, such as sheep, horses, oxen, dogs, and others that I will not attempt to enumerate. I take it this recognition has come about from the fact that years ago, and continuously to the present time, the progeny of these classes has been found by experience to be harmless, and so the law assumes the result of this experience to be correct without further proof. Unless an animal is brought within one of these two descriptions,—that is, unless it is shown to be either harmless by its very nature, or to belong to a class that has become so by what may be called cultivation,—it falls within the class of animals as to which the rule is, that a man who keeps one must take the responsibility of 424keeping it safe. It cannot possibly be said that an elephant comes within the class of animals known to be harmless by nature, or within that shown by experience to be harmless in this country, and consequently it falls within the class of animals that a man keeps at his peril, and which he must prevent from doing injury under any circumstances, unless the person to whom the injury is done brings it on himself. It was, therefore, immaterial in this case whether the particular animal was a dangerous one, or whether the defendants had any knowledge that it was so. The judgment entered was in these circumstances right, and the appeal must be dismissed.

Lindley, L. J. I am of the same opinion. The last case of this kind discussed was May v. Burdett, 9 Q. B. 101, but there the monkey which did the mischief was said to be accustomed to attack mankind, to the knowledge of the person who kept it. That does not decide this case. We have had no case cited to us, nor any evidence, to show that elephants in this country are not as a class dangerous; nor are they commonly known here to belong to the class of domesticated animals. Therefore a person who keeps one is liable, though he does not know that the particular one that he keeps is mischievous. Applying that principle to this case, it appears that the judgment for the plaintiff was right, and this appeal must be dismissed.

Bowen, L. J. I am of the same opinion. The broad principle that governs this case is that laid down in Fletcher v. Rylands, Law Rep. 1 Ex. 265; Law Rep. 3 H. L. 330, that a person who brings upon his land anything that would not naturally come upon it, and which is in itself dangerous, must take care that it is kept under proper control. The question of liability for damage done by mischievous animals is a branch of that law which has been applied in the same way from the times of Lord Holt^[264] and of Hale until now. People must not be wiser than the experience of mankind. If from the experience of mankind a particular class of animals is dangerous, though individuals may be tamed, a person who keeps one of the class takes the risk of any damage it may do. If, on the other hand, the animal kept belongs to a class which, according to the experience of mankind, is not dangerous, and not likely to do mischief, and if the class is dealt with by mankind on that footing, a person may safely keep such an animal, unless he knows that the particular animal that he keeps is likely to do mischief. It cannot be doubted that elephants as a class have not been reduced to a state of subjection; they still remain wild and untamed, though individuals are brought to a degree of tameness which amounts to domestication. A person, therefore, who keeps an elephant, does so at his own risk, and an action can be maintained for any injury done by it, although the owner had no knowledge of its mischievous propensities. I agree, therefore, that the appeal must be dismissed.

Appeal dismissed.^[265]

425 MAUNG KYAW DUN v. MA KYIN Before the Judicial Commissioner of Upper Burma, May 7, 1900. Reported in 2 Upper Burma Rulings (1897–1901), Civil, 570.

H. Thirkell White, Esq., Judicial Commissioner.

The plaintiff-appellant sued to recover damages on account of the death of his elephant “Do,” which died from the effect of wounds inflicted by the respondents’ elephant, “Kya Gyi.”

The issues which arise in a case of this kind have been stated in two cases of this court. In Maung Gyi v. Po To [same vol., p. 565] it was observed that the issue generally would no doubt be the usual issue as to the existence of negligence on the part of the owner of the animal doing the damage. In Maung Saw v. Maung Kyaw [same vol., p. 567], points which arise in a case very similar to the present were indicated. There has been some argument in this court on the application of the doctrine of scienter. It is said that “any one who keeps a wild animal, as a tiger or bear, which escapes and does damage, is liable without any proof of notice of the animal’s ferocity; but where the damage is done by a domestic animal, the plaintiff must show that the defendant knew the animal was accustomed to do mischief.” Collett on Torts, 7th edition, p. 100. Again, “a person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril. If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the animal to be mischievous, if it is of a notoriously fierce or mischievous species.” Pollock on Torts, 3d edition, p. 442. In Smith’s Leading Cases in the notes on Fletcher v. Rylands, 10th edition, vol. i, p. 827, it is said: “The law of England recognizes two distinct classes of animals. The first class consists of such animals as sheep, horses, oxen, and dogs, which the law assumes not to be of a dangerous nature, and a person who keeps an animal of this class is not liable for any damage it may do, when not trespassing, unless he knew that it was in fact dangerous. The other class consists of animals which have not 426been shown by experience to be harmless by nature; and one who keeps animals of this class must prevent them from doing injury under any circumstances, unless the person to whom it is done brings it on himself.” In the English case on which these remarks are based (Filburn v. People’s Palace Company), it was held that an elephant “did not belong to a class which, according to the experience of mankind, is not dangerous to man, and therefore the owner kept such an animal at his own risk, and his liability for damage done by it was not affected by his ignorance of its dangerous character.” Mew’s Digest of English Case Law, p. 199.

I understand the remarks of my learned predecessor in Maung Gyi v. Po To above cited to go no further than to suggest that a man should be liable for injury caused by his animal, whether tame or wild, if it is proved that the injury was due to the owner’s negligence. In that view, it would not be necessary to draw a distinction between wild and domestic animals. The point for decision would be whether the owner was guilty of negligence or whether he used such care as in the circumstances of the case was reasonable and ordinarily sufficient. The amount of care required would vary according to the class of the animal and according to its known disposition. It could not, I think, be laid down in this country that a man is liable for any damage done by his elephant without any proof of negligence or that he knew it to be of a vicious disposition. In view of the manner in, and extent to, which elephants are employed in this country such a proposition would be manifestly unjust.

In the present case, therefore, I think it was for the plaintiff to prove that the damage done to his elephant was caused, or rendered possible, by the defendant’s negligence. In considering the question of negligence, the defendant’s knowledge or want of knowledge that her elephant was of a vicious disposition would be an important point. In a suit of this kind, where an animal like an elephant is concerned, I think the burden of proving negligence is in the first place on the plaintiff who avers it. It might be otherwise if injury by a tiger or bear were concerned.

I agree with the Lower Courts in thinking that it is not proved that the defendant knew that the elephant “Kya Gyi” was of a vicious disposition. It was therefore not incumbent on her to take more than ordinary precautions with him. It does not seem to be shown that ordinary precautions were neglected. It is alleged that “Kya Gyi” twice gored the deceased elephant “Do,” and the mahout called by the plaintiff declares that he had neither bell nor fetters. On the other hand, as pointed out in the judgment of the Court of First Instance, the plaintiff himself admitted that “Kya Gyi” had a bell and fetters on the second occasion. It is admitted that all the other elephants of the defendant had bells and fetters. There is direct evidence, at least as good as that for the plaintiff, that “Kya Gyi” was 427properly provided with them. In my opinion it has not been proved that there was any negligence on the part of the defendant, and any prima facie case made out by the plaintiff has been rebutted. I therefore hold that the Lower Courts have rightly decided that the defendants are not liable; and I dismiss this appeal with costs.^[266]

BOSTOCK-FERARI AMUSEMENT COMPANY v. BROCKSMITH Appellate Court, Indiana, February 14, 1895. Reported in 34 Indiana Appellate Court Reports, 566.

Action by Otto Brocksmith against Bostock-Ferari Amusement Company. From a judgment for plaintiff, defendant appeals.

Comstock, C. J. The complaint alleges that the plaintiff, while driving in his buggy, was injured in consequence of his horse taking fright from the sight of a bear walking along a public street in the city of Vincennes. The action was begun in the Circuit Court of Knox County, and, upon change of venue, tried in the Circuit Court of Sullivan County. The court rendered judgment upon the verdict of the jury in favor of appellee for $750. The complaint was in three paragraphs. The first was dismissed, and the cause was tried upon the amended second and third paragraphs, to which general denial was filed.

The errors relied upon are the action of the court in overruling demurrers to said second and third paragraphs, respectively, of the complaint, and overruling appellant’s motion for a new trial. Some of the reasons set out in the motion for a new trial are that the verdict was contrary to the law, and was not sustained by sufficient evidence.

The question of the sufficiency of the second paragraph of the complaint is not entirely free from doubt, but we conclude that each of said paragraphs is sufficient to withstand a demurrer.

It is sought to maintain an action for damages resulting from the fright of a horse at the sight of a bear, which his keeper and owner was leading along a public street, for the purpose of transporting him from a railroad train, by which he had been carried to Vincennes, to the point in Vincennes at which the bear was to be an exhibit as a 428part of appellant’s show. It is not claimed, either by allegation or proof, that the show was in itself unlawful; and there is no pretence that the transporting of the bear from one place to another for the purpose of exhibition was unlawful, or in itself negligence. The case is therefore one of the fright of a horse merely at the appearance of the bear while he was being led along the street, was making no noise or other demonstration, and was in the control of his keeper. It appears without contradiction from the evidence that when the horse took fright the bear was doing nothing except going with his keeper. He was muzzled. He had a ring in his nose to which a chain was attached. Said chain was strong enough to hold and control him. He had around his neck a collar about two inches wide and one-half inch thick, to which also was attached a chain. The keeper had both chains in his hand when the accident occurred. The chain connected with the ring in his nose was small. The one connected with his collar was large. It was for the purpose of chaining him at night when he was alone. The chains were strong enough to control the bear. The animal was characterized by the witnesses who knew him as “gentle,” “kind,” “docile.” His keeper testified that he had never known him to be mean or to growl. He testified also that he never knew of a bear scaring a horse; that shortly before the accident the keeper met two ladies in a buggy, and their horse did not scare. He was described as of pretty good size and brown. One witness said he was a “large, ugly-looking, brown bear.”

When a person is injured by an attack by an animal ferae naturae, the negligence of the owner is presumed, because the dangerous propensity of such an animal is known, and the law recognizes that safety lies only in keeping it secure. 2 Am. and Eng. Ency. Law (2d ed.), p. 351. In the case before us the injury did not result from any vicious propensity of the bear. He did nothing but walk in the charge of his owner and keeper, Peter Degeleih. He was being moved quietly upon a public thoroughfare for a lawful purpose.

We have given the facts that are not controverted. There is also evidence leading strongly to support the claim made by appellant that appellee was guilty of negligence, proximately contributing to his injury. Appellant also earnestly argues—supporting its argument with references to recognized authorities—that the owner and keeper of the bear was an independent contractor. But the disposition which we think should be made of the appeal makes it unnecessary to consider these questions. The liability of the appellant must rest on the doctrine of negligence. The gist of the action as claimed by appellee is the transportation of the bear, with knowledge that he was likely to frighten horses, without taking precaution to guard against fright.

1. An animal ferae naturae, reduced to captivity, is the property of its captor, 2 Blackstone’s Comm., *391, *403; 4 Blackstone’s Comm., *235, *236.

4292. The owner of the bear had the right to transport him from one place to another for a lawful purpose, and it was not negligence per se for the owner or keeper to lead him along a public street for such purpose. Scribner v. Kelley, (1862) 38 Barb. 14; Macomber v. Nichols, (1876) 34 Mich. 212, 22 Am. Rep. 522; Ingham, Law of Animals, p. 230.

3. The conducting of shows for the exhibition of wild or strange animals is a lawful business. The mere fact that the appearance of a chattel, whether an animal or an inanimate object, is calculated to frighten a horse of ordinary gentleness, does not deprive the owner of such chattel of his lawful right to transport his property along a public highway. Macomber v. Nichols, supra; Holland v. Bartch, (1889) 120 Ind. 46, 16 Am. St. 307; Wabash, etc., R. Co. v. Farver, (1887) 111 Ind. 195, 60 Am. Rep. 696; Gilbert v. Flint, etc., R. Co., (1883) 51 Mich. 488, 16 N. W. 868, 47 Am. Rep. 592; Piolette v. Simers, (1894) 106 Pa. St. 95, 51 Am. Rep. 496. One must use his own so as not unnecessarily to injure another, but the measure of care to be employed in respect to animals and other property is the same. It is such care as an ordinarily prudent person would employ under similar circumstances. This is not inconsistent with the proposition that if an animal ferae naturae attacks and injures a person, the negligence of the owner or keeper is presumed. The evidence is that the horse was of ordinary gentleness, but this fact would not deprive the appellant of the right to make proper use of the street. If the bear had been carelessly managed, or permitted to make any unnecessary noise or demonstration, it would have been an act of negligence.

It is not uncommon for horses of ordinary gentleness to become frightened at unaccustomed sights on the public highway. The automobile, the bicycle, the traction-engine, the steam roller may each be frightful to some horses, but still they may be lawfully used on the public streets. King David said, “An horse is a vain thing for safety.” Modern observation has fully justified the statement. A large dog, a great bull, a baby wagon may each frighten some horses, but their owners are not barred from using them upon the streets on that account. Nor under the decisions would the courts be warranted in holding that the owner of a bear, subjugated, gentle, docile, chained, would not, under the facts shown in the case at the bar, be permitted to conduct the homely brute along the public streets because of his previous condition of freedom.

In Scribner v. Kelley, supra, the court said: “It does not appear that the elephant was at large, but on the contrary that he was in the care, and apparently under the control, of a man who was riding beside him on a horse; and the occurrence happened before the passage of the act of April 2, 1862, regulating the use of public highways. There is nothing in the evidence to show that the plaintiff’s horse was terrified because the object he saw was an elephant, but 430only that he was frightened because he suddenly saw moving upon a highway, crossing that upon which he was travelling, and fully one hundred feet from him, a large animate object to which he was unaccustomed—non constat that any other moving object of equal size and differing in appearance from such as he was accustomed to see might not have inspired him with similar terror. The injury which resulted from his fright is more fairly attributed to a lack of ordinary courage and discipline in himself, than to the fact that the object which he saw was an elephant.”

4. It is alleged in the complaint that the bear was an object likely to frighten a horse of ordinary gentleness, which fact the appellant well knew. There is no evidence that the bear was an object likely to frighten horses of ordinary gentleness, nor that the appellant knew that the bear was an object likely to frighten horses of ordinary gentleness. The evidence shows, so far as the observation of the keeper and the appellant gave information, that the bear had not frightened horses.

The facts upon the question of negligence are undisputed, and that question is therefore to be determined by the court as a matter of law.

Judgment is reversed, with instruction to sustain appellant’s motion for a new trial.^[267]

MARLOR v. BALL In the Court of Appeal, March 1, 1900. Reported in 16 Times Law Reports, 239.

This was an application by the defendant for judgment or a new trial in an action tried before Mr. Justice Phillimore and a special jury at Manchester. The action was brought to recover damages for personal injuries sustained by the plaintiff through being bitten by a zebra belonging to the defendant. The plaintiff was a working man. The defendant was the proprietor of the Chadderton-hall pleasuregrounds, at Oldham, where he kept an exhibition of wild animals. The plaintiff went with his wife and his brother-in-law to see the exhibition, and, having paid for admission, entered the gardens. While they were walking along they found the door of a stable standing open, and went in. There were four zebras inside the stable, each in a separate stall and properly tied up by a halter to the manger. The plaintiff went up to one of the zebras and stroked it. The animal kicked out, and the plaintiff being then standing against the partition, the animal pressed him through the partition, and he fell into the next stall, where another zebra bit his hand, which had to be amputated. 431At the trial the jury returned a verdict for the plaintiff for £175.

Mr. Montague Lush, for the defendant, in support of the application for judgment or a new trial, contended that there was no evidence on which the defendant could be held liable. The common law obligation of a person who kept animals ferae naturae was to keep them secure, or, in other words, to prevent them from getting loose. He was liable to an action, if, in consequence of a failure on his part to comply with that obligation, any other person was injured. In such a case it was not necessary for the plaintiff to allege negligence. But in this case there had been no failure to comply with that common law obligation. Here the animals were kept secure, they were not loose. The plaintiff, therefore, had to allege negligence, and the alleged negligence appeared to be this, that the defendant did not provide a keeper, or some physical barrier to prevent people from meddling with the animals. But this allegation did not show a cause of action at all. There was no authority for saying that an action lay for not preventing the plaintiff from bringing an injury on himself. It was not sufficient for the plaintiff here to show that the door was open. The door being open might be an invitation to go in, but it was not an invitation to meddle by stroking the zebras. The plaintiff failed to show any negligence on the part of the defendant, and he had no remedy. Counsel referred to Filburn v. The People’s Palace and Aquarium Company (Limited), 25 Q. B. D. 258; and Memberz v. The Great Western Railway Company, 14 App. Cas. 179.

Mr. S. T. Evans, for the plaintiff, said the foundation of the action was that zebras were dangerous animals, and it was the duty of persons who kept dangerous animals to prevent them from doing injury. The leaving the door of the stable unlocked was a default on the part of the defendant. The plaintiff was not in any way warned that these zebras were wild animals. The evidence taken altogether showed that these zebras were kept in much the same way as horses would ordinarily be kept. He referred to May v. Burdett, 9 Q. B. 101.

The Court allowed the application and ordered judgment to be entered for the defendant.

Lord Justice A. L. Smith said it was conceded that a zebra was a dangerous animal, and that by law a man who kept a dangerous animal must do so at his peril, and that if any damage resulted, then, apart from any question of negligence, he was liable for the damage. But that was subject to this, that the person who complained of damage must not have brought the injury on himself. Where the plaintiff did something which he had no business to do,—e. g. by meddling, as the plaintiff in this case had done,—then the defendant was not liable. That was common law, and it was also common sense. In Filburn v. The People’s Palace (Limited), Lord Esher expressly dealt with this point. He there said: “It cannot possibly be said that 432an elephant comes within the class of animals known to be harmless by nature, or within that shown by experience to be harmless in this country, and consequently it falls within the class of animals that a man keeps at his peril, and which he must prevent from doing injury under any circumstances, unless the person to whom the injury is done brings it on himself.” The action, therefore, could not be maintained on the common law liability. The plaintiff then set up a claim for negligence, viz., that the door was not kept locked, and that there was no keeper at hand. The evidence showed that the door had been shut, but had got opened. If the plaintiff had been kicked while walking along the stable, an action might have lain, but the plaintiff went into the stall and meddled with the animal. Even if the fact of the door being open was an invitation to go into the stable, it was not an invitation to stroke the animals. In his opinion there was no evidence to go to the jury, and judgment must be entered for the defendant.

Lord Justice Collins said the plaintiff’s case was put on the footing of these zebras being wild animals. The duty of a person who owned a wild animal, as laid down in May v. Burdett, was to keep it secure at his peril. The evidence in this case all went to show that these animals were kept secure within the meaning of that case. In his opinion there was no evidence of any invitation to go and tamper with the animals.

Lord Justice Romer concurred.^[268]

433 MASON v. KEELING In the King’s Bench, Michaelmas Term, 1699. Reported in 12 Modern Reports, 332.

Action on the case, in which the plaintiff declared that on the twentieth of June, in the eleventh of the king, the defendant quendam canem molossum valde ferocem did keep, and let him go loose unmuzzled per publica compita, so that pro defectu curæ of the defendant the plaintiff was bit and worried by the said dog, as he was peaceably going about his business in such a street. There was another count, in which it was laid that the defendant knew the dog ad mordend. assuet. To the first count there was a demurrer, and to the second not guilty.^[269]

Gould, J. No doubt but in the case of sheep there ought to be a sciens, because that is an accidental quality, and not in the nature of a dog. And as to property of a dog, the Books distinguish; for a man has a property in a dog that is a mastiff or spaniel, for the one is for the guard of his house, the other for his pleasure; but this here is a mongrel, and laid to be valde ferocem, and that must be an innate fierceness, and not accidental; and if a dog be assuet. to bite cows, and the master know it, that will not be sufficient knowledge to make him liable for his biting sheep. Besides, this case is distinguishable in respect of the place, for the law takes notice of highway, and is a security for passengers; and it would be dangerous to keep such dogs near the highway, where all sorts of people pass at all hours; and to maintain this issue, they must give a natural fierceness in evidence.

Holt, C. J. If it had been said that the defendant knew the dog to be ferox, I should think it enough. The difference is between things in which the party has a valuable property, for he shall answer for all damages done by them; but of things in which he has no valuable property, if they are such as are naturally mischievous in their kind, he shall answer for hurt done by them without any notice; but if they are of a tame nature, there must be notice of the ill quality; and the law takes notice that a dog is not of a fierce nature, but rather the contrary; and the presumption is against the plaintiff; for can it be imagined a man would keep a fierce dog in his family wittingly? If any beast in which I have a valuable property do damage in another’s soil, in treading his grass, trespass will lie for it; but if my dog go into another man’s soil, no action will lie. See the case of Millan v. Hawtree, 1 Jones, 131, Poph. 161, Latch, 13, 119, that scienter is the gît of the action; and so is 1 Cro., where it was doubted whether the scienter should go to the keeping or quality; nor does it appear here but it was an accidental fierceness, or suppose it were an innate one to this dog particularly; and it had been given to the owner but an hour 434before, shall he take notice of all the qualities of his dog at his peril, or shall he have his action against the giver for bestowing him a naughty dog? In case a dog bites pigs, which almost all dogs will do, a scienter is necessary. 1 Cro. 255. And I do not doubt but if it be generally laid that a dog was used to bite animalia, and the defendant knew of it, it will be enough to charge him for biting of sheep, &c.; and by animalia shall not be intended frogs or mice, but such in which the plaintiff has property.

And judgment was given for the defendant by Holt, Chief-Justice, and Turton, Justice; Gould, J., mutante opinionem suam.^[270]

De GRAY v. MURRAY Supreme Court, New Jersey, June 8, 1903. Reported in 69 New Jersey Law Reports, 458.

Gummere, C. J. This was an action to recover for injuries resulting to the plaintiff in error (the plaintiff below) from the bite of a dog, owned by the defendant in error, which attacked her while she was walking on the public street. At the close of the testimony the trial judge directed a verdict for the defendant, and the plaintiff seeks to review the judgment entered upon that verdict.

It is the settled law that the owner of a dog will not be held responsible for injuries resulting to another person from its bite unless it be shown that the dog had previously bitten some one else, or was vicious, to the knowledge of the owner. Smith v. Donohue, 20 Vroom, 548, and cases cited.

[After discussing the evidence, and holding that there was an utter failure to prove scienter.]

435But even if the evidence submitted would support the conclusion that the dog had a propensity to bite, and that what the defendant heard about its attack on the boy charged him with knowledge of that propensity, the direction of a verdict in his favor was not erroneous. In England, and in some of our sister states, it is held that the owner of an animal which has a propensity to attack and bite mankind, who keeps it with the knowledge that it has such a propensity, does so at his peril, and that his liability for injuries inflicted by it is absolute. A leading case is that of May v. Burdett, 9 Q. B. (N. S.) 112, in which it is stated that “the conclusion to be drawn from all the authorities appears to be this: that a person keeping a mischievous animal, with knowledge of its propensity, is bound to keep it secure at his peril, and that if it does mischief, negligence is presumed without express averment. The negligence is in keeping such an animal after notice.” Subsequently, the Court of Exchequer Chamber, adopting as accurate the principle underlying the decision of May v. Burdett, and referring to the opinion in that case, among others, as an authority for its conclusion, declared, in the case of Fletcher v. Rylands, L. R. 1 Exch. 265, that “one who, for his own purposes, brings upon his land, and keeps there, anything likely to do mischief if it escapes, is prima facie answerable for all the damage which is the natural consequence of its escape.” The application of this principle led the court to fix liability upon the owner of land, who had stored water in a reservoir built thereon, for injury done to adjoining property by water escaping from the reservoir, notwithstanding that such escape was not due to any negligence on the part of the owner. Ten years after the decision of Fletcher v. Rylands, the rule laid down in that case was applied in this state, at circuit, in the case of Marshall v. Welwood, 9 Vroom, 339, and the owner of a steam boiler, which blew up and wrecked adjacent property, was held liable for the damage done, notwithstanding the fact that the bursting of the boiler was not due to any negligence on his part. The case was subsequently reviewed here, on rule to show cause, and this court, in a masterly opinion by the late Chief Justice Beasley, expressly disapproved of the doctrine laid down in Fletcher v. Rylands (which, as I have already stated, is rested, 436among other decisions, on May v. Burdett), and declared that no man is, in law, an insurer that the acts which he does, such acts being lawful and done with care, shall not injuriously affect others; and that an injury which results from a lawful act, done in a lawful manner, and without negligence on the part of the person doing the act, will not support an action. Applying that principle to the case in hand, this court then held that the owner of a steam boiler, which he has in use on his own property, is not responsible, in the absence of negligence, for the damages done by its bursting. The principle laid down in Marshall v. Welwood was reiterated by this court in the case of Hill v. Ulshowski, 32 Id. 375.

The right of a man to keep a vicious dog for the protection of his home and property is conceded in the case of Roehers v. Remhoff, 26 Vroom, 475. He is, of course, bound to exercise a degree of care, commensurate with the danger to others which will follow the dog’s escape from his control, to so secure it that it will not injure any one who does not unlawfully provoke or intermeddle with it. Worthen v. Love, 60 Vt. 285. But if the owner does use such care, and the dog nevertheless escapes and inflicts injury, he is not liable.

In the case now under consideration the undisputed evidence makes it clear that the defendant fully discharged the duty of using due care to prevent the escape of his dog from his premises, and that the plaintiff’s injury was not due to any neglect in that regard upon his part. She was bitten in the early morning, between half-past six and seven o’clock. On the preceding evening the defendant shut the dog in his carpenter shop (which adjoined his dwelling) and locked him in. During the night the dog gnawed away the woodwork from around the lock of the door to such an extent that the lock became detached, thus permitting the door to open and the dog to escape. That a reasonably prudent man would not have anticipated any such occurrence must be admitted.

The judgment under review should be affirmed.^[271]

437 CROWLEY v. GROONELL Supreme Court, Vermont, February 9, 1901. Reported in 73 Vermont Reports, 45.

Case for an injury to the plaintiff by the defendant’s dog. Plea, the general issue. Trial by jury, Rutland County, March Term, 1900, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

It appeared that the plaintiff, an old man, was a neighbor of the defendant and went one morning to the defendant’s barn, where the latter was, to buy some potatoes of him; that when the plaintiff got near the barn, the defendant’s dog, which was large, and was lying near the barn door, assaulted the plaintiff by jumping up and putting his feet upon him and throwing him down, breaking his hip. The testimony was conflicting as to whether this assault was vicious or playful and as to the propensities of the dog known to the plaintiff.

Watson, J. The only exception upon which the defendant relies is the one to that part of the charge where the court said that a cross and savage disposition on the part of the dog was not necessary in order to impose liability; that a mischievous propensity to commit the kind of assault complained of was enough if the plaintiff’s case was otherwise made out; and that in respect to imposing liability, it made no difference whether such assault proceeded from good nature or ill nature, from ugliness or playfulness.

The defendant contends that the duty of restraint attaches only when the owner or keeper has reason to apprehend that the dog may do damage by reason of its viciousness or ferocity, and that the acts of the dog, proceeding from good nature or playfulness, cannot render the defendant liable. If a man have a beast that is ferae naturae as a lion, a bear, a wolf, if he get loose and do harm to any person, the owner is liable to an action for damages, though he have no particular notice that he had done any such thing before. The same principle applies to damages done by domestic animals, except that as to them, the owner must have seen or heard enough to convince a man of ordinary prudence of the animal’s inclination to commit the class of injuries complained of. With notice to the owner of such propensity in the animal, he is liable for whatever damages may be suffered by person or property therefrom. It makes no difference whether the animal was of cross and savage disposition and committed the injury by reason of its viciousness and ferocity, or whether such injury resulted from good nature and playfulness—the intent of the animal is not material. The owner or keeper having knowledge of its disposition to commit such injuries must restrain it at his peril, and it is no answer to say that the animal was not cross or savage and was in good nature and playfulness.

438In State v. McDermott, 6 Atl. Rep. 653 [49 N. J. Law, 163], at the close of the plaintiff’s evidence, the defendant moved for a nonsuit on the ground that it did not appear that the dog had bitten McDermott maliciously, and also on the ground that there was no evidence that the dog had bitten other persons except in play, or that the defendant had knowledge of the propensity of the dog to bite. The motion was overruled. It was contended that although several persons had been bitten by the dog, of which the defendant had notice, yet it appeared that in every instance the biting occurred while the dog was in a playful mood; that damages could not be recovered where it was shown that the dog had a propensity to bite only in play; and that to justify a recovery, it must appear that the dog was in the habit of biting mankind while in an angry mood, actuated by a ferocious spirit. It was held that this was not the law,—that an action could be maintained against the owner by a party injured upon evidence that a dog, with the knowledge of the owner, had a mischievous propensity to bite mankind, whether in anger or not; for in either case, the person bitten would suffer injury, and that mischievous propensity, within the meaning of the law, was a propensity from which injury is the natural result.

There was no error in the charge, and judgment is affirmed.^[272]

Erle, C. J., in COX v. BURBIDGE (1863) 13 Common Bench, New Series, 435–437.

I am of opinion that this rule must be made absolute, on the ground that there was a total absence of evidence to support the cause of action alleged. The facts I take to be these: The plaintiff, a child of tender age, was lawfully upon the highway, and a horse, the property of the defendant, was straying on the highway. As between the owner of the horse and the owner of the soil of the highway or of the herbage growing thereon, we may assume that the horse was trespassing; and, if the horse had done any damage to the soil, the owner of the soil might have had a right of action against his owner. So, it may be assumed, that if the place in question were a public highway, the owner of the horse might have been liable to be proceeded against under the Highway Act. But, in considering the claim of the plaintiff against the defendant for the injury sustained from the kick, the question whether the horse was a trespasser as against the owner of the soil, or whether his owner was amenable under the Highway Act, has nothing to do with the case of the plaintiff. I am also of opinion that so much of the argument which has been addressed to us 439on the part of the plaintiff as assumes the action to be founded upon the negligence of the owner of the horse in allowing it to be upon the road unattended, is not tenable. To entitle the plaintiff to maintain the action, it is necessary to show a breach of some legal duty due from the defendant to the plaintiff; and it is enough to say that there is no evidence to support the affirmative of the issue that there was negligence on the part of the defendant for which an action would lie by the plaintiff. The simple fact found is, that the horse was on the highway. He may have been there without any negligence of the owner: he might have been put there by a stranger, or might have escaped from some enclosed place without the owner’s knowledge. To entitle the plaintiff to recover, there must be some affirmative proof of negligence in the defendant in respect of a duty owing to the plaintiff. But, even if there was any negligence on the part of the owner of the horse, I do not see how that is at all connected with the damage of which the plaintiff complains. It appears that the horse was on the highway, and that, without anything to account for it, he struck out and injured the plaintiff. I take the well-known distinction to apply here, that the owner of an animal is answerable for any damage done by it, provided it be of such a nature as is likely to arise from such an animal, and the owner knows it. Thus, in the case of a dog, if he bites a man or worries sheep, and his owner knows that he is accustomed to bite men or to worry sheep, the owner is responsible; but the party injured has no remedy unless the scienter can be proved. This is very familiar doctrine; and it seems to me that there is much stronger reason for applying that rule in respect of the damage done here. The owner of a horse must be taken to know that the animal will stray if not properly secured, and may find its way into his neighbor’s corn or pasture. For a trespass of that kind, the owner is of course responsible. But if the horse does something which is quite contrary to his ordinary nature,—something which his owner has no reason to expect he will do, he has the same sort of protection that the owner of a dog has; and everybody knows that it is not at all the ordinary habit of a horse to kick a child on a highway. I think the ground upon which the plaintiff’s counsel rests his case fails. It reduces itself to the question whether the owner of a horse is liable for a sudden act of a fierce and violent nature which is altogether contrary to the usual habits of the horse, without more.^[273]