This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At common law, an owner of land is under no obligation to fence his land, in order to keep the cattle of others from straying thereon, but there is an absolute obligation upon the owner of cattle to restrain them, by fences or other means, from straying on the land of others,80 except in the case of cattle which are being properly driven on the highway,81 or unless the landowner owes to the owner of the cattle, by prescription,82 grant,82a or contract,83 an obligation to fence.
In some of the states the common-rule law has been recognized as in force, enabling the owner of unfenced land to recover for injury caused by cattle trespassing thereon, without reference to the negligence of their owner,84 and in some states this rule has been confirmed
Me. 348, 63 Am. Dec. 663; Brewer v. Boston & B. R. Corp., 5 Mete. (Mass.) 478, 39 Am. Dec. 694; Liverpool Wharf v. Prescott, 7 Allen (Mass.) 494; Cronin v. Gore, 38 Mich. 381; Combs v. Cooper, 5 Minn. 254; Parker v. Brown, 15 N. H. 176; Lovelace v. Carpenter, 115 N. C. 424, 20 S. E. 511.
80. 3 Blackst. Comm. 211; Gale, Easements (8th Ed.) 465; Boyle v. Tamlyn, 6 Barn. & C. 329, 337; Rust v. Low, 6 Mass. 90.
81. Dovaston v. Payne, 2 H Blackst. 527; Lord v. Wormwood, 29 Me. 282; Hartford v. Brady, 114 Mass. 466, 19 Am. Rep. 377.
82. Boyle v. Tamlyn, 6 B. &
C. 329; Little v. Lafhrop, 5 Me. 360; Rust v. Low. 6; Mass. 90; Gibson v. Hey ward, 67 N. H. 265, 30 Atl. 407; Titus v. Pennsylvania R. Co., 87 N. J. L. 157, Ann. Cas. 1917B, 1251, 92 Atl. 944; Adams v. Van, Alstyne, 25 N. V. 232. But see Wright v. Wright, 21 Conn. 329; Gildden v. Towle, 31 N. H. ]47.
82a. Post, Sec. 357.
83. D'Arcy v. Miller, 86 111. 102, 28 Am. Rep. 21; Bruner v. Palmer, 108 Ind. 397, 9 N. E. 356; McAfee v. Walker, 82 Kan. 182, 27 L. R. A. (X. S.) 226 107 Pac. 637; Knox v. Tucker, 48 Me. 373, 77 Am. Dec. 233; Scott v. Grover, 56 Vt. 499, 48 Am. Hep. 814.
84. 2 Shearman & Redfield,
[Sec. 298 by statute.85 In many, perhaps a majority, of the states, this rule, owing either to express legislation to the contrary, or as being inconsistent with the custom of the community to allow live stock to run at large, and legislation recognizing such custom, is not in force, the result being that the owner of land can usually recover on account of a trespass by another's cattle only if his land was properly fenced at the time of the trespass.86 In some states the question whether cattle shall be allowed to run at large, and whether the owner of laud must protect himself against them by fences, is a matter which each particular county or other municipal division of the state is allowed to decide for itself.87
Negligence (5th Ed.) 655; Bonner v. De Loach, 78 Ga. 50, 2 S. E. 546; Webber v. Closson, 35 Me. 26; Thayer v. Arnold, 4 Mete. (Mass.) 589; Collins v. Lindquist. 154 Mich. 658, 118 N. W. 596; Noyes v. Colby, 30 N. H. 143; Vandegrift v. Rediker, 22 N. J. L. 158, 51 Am. Dec. 262; Holladay v. Marsh, 3 Wend. (N. Y.) 143,
20 Am. Dec. 678; Bileu v. Paisley, 18 Ore. 47, i L. R. A. 840,
21 Pac. 934.
85. See Hahn v. Garratt, 69 Cal. 146, 10 Pac. 329; Bulpit v. Matthews, 145 111. 315, 22 L. R. A. 55, 34 N. E. 525; Little v. Mc-Guire, 38 Iowa 560; Wells v. Beal, 9 Kan. 597: State v. Mathis, 149 N. C. 546, 63 S. E. 99.
86. Pruitt v. Ellington, 59 Ala 454; Merritt v. Hill, 104 Cal. 184, 37 Pac. 893; Hine v. Wooding, 37 Conn. 123; Sprague v. Fremont, E. & M. V. R. Co., 6 Dak. 86, 50 N. W. 617; Savannah, F. & W. Ry. Co. v. Geiger. 21 Fla. 669, 58 Am. Rep. 697; Seeley v. Peters, 10 111. 130; Clark v. Stipp,
75 Ind. 114; Gorman v. Pacific R. Co., 26 Mo. 441, 72 Am. Dec. 220; Delaney v. Errickson, 10 Neb. 492; Bottoms v. Clark, 38 Okla. 243, 132 Pac. 903; Ker-whaker v. Cleveland, C. & C. R. Co., 3 Ohio St. 172, 62 Am. Dec. 246; Pace v. Potter, 85 Tex. 473, 22 S. W. 300. See 1 Stim-son's Am. St. Law, Sec. 2189; 12 Am. & Eng. Enc. Law. (2nd Ed.) 1042 et seq.
The common law rule has been decided not to apply to cattle grazing on public lands of the United States. Buford v. Houtz, 133 U. S. 320.
87. See 1 Stimson's Am. St Law, Sec. 2190; Crosswhile v. Commissioners' Court of Colbert County, - (Ala.) - , 49 So. 870; Mathis v. Jones, 84 Ga. 804, 11 S. E. 1818; Bulpit v. Matthews, 145 111. 345, 22 L. R. A. 55, 34 N. E. 525; Wells v. Beal, 98 Kan. 597; Humphreys v. Humphreys, - (Mo.) -, 178 S. W. 52; Johnson v. Rickford, 18 N. Dak. 268, 122 N. W. 386; LeFlore v. Sanders,
A statute altering the common-law rule as to the right of one whose land is unfenced to recover for injuries by trespassing cattle imposes no obligation on him to fence his land.88 In a very considerable number of states, however, a statute requires the owner of land, provided usually it is enclosed or improved land, to share in the construction and maintenance of a division fence between his property and that adjoining,89 the effect of such legislation being to give one adjoining owner a right to demand contribution from the other for the cost of a partition fence, erected or to be erected, usually after their respective shares of the cost have been fixed by local officials known as fence viewers.