Cornell Law School Library Cornell University Library KF 390.F3A93 Wa containing the law o AMERICAN FARM LAWS CONTAINING THE LAW OF EACH STATE By HENRY AUSTIN a OF THE SUFFOLK BAR BOSTON LAg2e# Copyright, 1891, By Henry AUSTIN. PREFACE. Ir has been the aim of the author, in preparing this work, to make a brief but comprehensive summary of . the law relating to the farm, which will be of use not only to the attorney having furmers as clients, but also to the farmer himself. The author has therefore en- deavored to avoid using technical terms and phrases, and has stated the law in the simplest possible lan- guage. The statements have been made as short as possible, in order to cover, in a limited space, all topics of general interest to the farmer. H. A. FARM LAW. CHAPTER I. THE FARMER AND HIS LABORER. Sxct. 1. Relation between Farmer and Laborer. . Contracts for more than a Year. . Enticing the Laborer away from his Master. . Abandoning Service without Cause. . Abandoning Service for Cause. Farmer liable on Laborer’s Contracts. . Liability of Farmer for Injuries committed by his Laborer. . Discharge for Cause. . Liability of Laborer to Farmer for Consequences of Miscon- duct. . Termination of Service. OND OR OO DD —_ So Sect. 1. Relation between Farmer and Laborer. Tue word “laborer” is here applied to all persons, of whatever rank, who are in the employ and subject to the direction of the farmer. The legal relation which exists between a farmer and his laborer rests wholly upon contract, express or im- plied. The one is bound to render the service, the other to pay the stipulated price, or the value thereof if no agreement is made as to price. 1 2 FARM LAW. But it is essential that the parties have the legal capacity to contract; otherwise, the contract cannot be enforced. Thus if a laborer who is under age binds himself for a specified term at a fixed price, he is not bound by his bargain, but may abandon it at any time before the expiration of the term ; and although he can- not recover upon his contract, he is entitled to what his services were reasonably worth,! without deduction therefrom of any damages for his breach of contract. If no definite period of employment is agreed upon, there is a hiring at will,?— the farmer having the right to discharge and the laborer the right to leave at any time without cause;* but if there be no special bar- gain as to the price, the farmer must pay a reasonable value for his services, dependent upon the current rate of wages for similar service at the time and place of performance.! In England, if no time is limited, expressly or im- pliedly, for the duration of a contract of hiring and service, the hiring is considered for a year. 1 Lufkin v, Mayall, 25 N. H. 82; Hoxie . Lincoln, 25 Vt. 206 ; Vent v, Osgood, 19 Pick. 572; Van Pelt v. Corwine, 6 Ind. 363 ; Lowe v. Sinklear, 27 Mo. 308; Clark v. Goddard, 39 Ala. 164; Medbury v, Watrous, 7 Hill (N. Y.), 110; Derocher v. Continental Mills, 56 Me. 287. 2 Tatterson v. Suffolk Manuf. Co., 106 Mass. 56; De Brar v. Min- turn, 1 Cal. 450; Prentiss v. Ledyard, 28 Wis. 131; Franklin Mining Co, v. Harris, 24 Mich. 115; Kirk v, Hartman, 63 Penn. St. 97. 3 Whitcomb v. Gilman, 35 Vt. 297; Evans v. Bennett, 7 Wis. 404. * Harper v, Hassard, 113 Mass. 187 ; Mattocks », Lyman, 16 Vt. 116; Coffin v. Landis, 46 Penn. St. 426; Nauman ». Zoerhlaut, 21 Wis. 466; Jones v. School District, 8 Kan. 362; Costigan ve M. & H. R. R. Co., 2 Denio, 612; Beeston v, Collyer, 4 Bing. 309; s. o. 2 Carr. & P. 609, THE FARMER AND HIS LABORER. 3 Sect. 2. Contracts for more than a Year, All contracts for personal service made by the farmer which cannot be performed within a year must, by the Statute of Frauds,' be in writing in order to be legally binding. Thus where A., in January, agreed orally to clear a piece of woodland for B., and to fence a part of one end of it, in one year from the ensuing spring, when A. was to put in a crop, which with the wood and timber, except that used for the fences, he was to have for his compensation, in an action against A. for non-performance, it was held that the contract was within the Statute of Frauds and void,? being an oral contract not to be performed within one year. If the farmer has made an oral bargain to employ a laborer for a year, and the contract can be completed within that time, it is binding; but if the performance 1 The fourth section of the Statute of Frauds (29 Car. II. a. p. 1677) enacts, among other things, that “no action shall be brought upon an agreement that is not to be performed within a year from fhe making thereof unless the promise, contract, or agreement, upon which such action is brought, orsome memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.” The following States have followed substantially the provisions of the above statute, ‘‘that no action shall be maintained:” Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Pennsylvania, North and South Carolina, Ohio, Georgia, Florida, Illinois, Arkansas, Missouri, Tennessee, Texas, Vir- ginia, Kansas, Mississippi, Maryland, Kentucky, Indiana, Minnesota. But in New York, Michigan, Wisconsin, Oregon, Nevada, California, and Alabama all such agreements are declired absolutely void. 2 Broadwell v. Getman, 2 Denio (N. Y.), 87; Herrin v. Butters, 20 Me. 119; Comstock v. Ward, 22 Ill. 248; Squire v. Whipple, 1 Vt. 69. 4 FARM LAW. of such contract is to commence at a future day, it cannot be enforced.! Yet it seems that an oral con- tract to hire a laborer for a year, to begin the next day, is valid? Srct. 3. Enticing the Laborer away from his Master. Where a farmer employs a laborer to work on his farm, and a person knowing of such employment en- tices, hires, or persuades the laborer to leave the ser- vice during the term of employment, the farmer has a right of action to recover damages against such per- son for all the inconvenience and losses thereby suffered by the farmer.? But a mere attempt to entice a laborer away, unless some damage is sustained by the farmer, is not action- able ;* nor is one liable for inducing a laborer to leave his employer's service at the end of the stipulated term, although the laborer had no intention at the time of leaving him. 1 King v. Welcome, 5 Gray, 41; Comes v, Lamson, 16 Conn. 246; Lockwood v, Barnes, 3 Hill, 128 ; Hinckley v. Southgate, 11 Vt. 429; Sutcliffe v. Atlantic Mills, 13 R. I. 480. 2 Dickson v. Frisbee, 52 Ala. 165; s.c. 23 Am. Rep. 565. 8 Bixby v. Dunlap, 56 N. H. 456; Walker v. Cronin, 107 Mass, 555; Badgeley v. Haight, 15 Barb. 499; Jones v. Blocker, 43 Ga. 331; Daniel v. Swearenger, 6 S. C. 297; Gunter v. Astor, 4 J. B. Moore, 12; Peters v. Lord, 18 Conn. 337; Milburne v. Bryne, 1 Cr. C.C. (U. 8.) 289; Noice v. Brown, 39 N. J. L. 569; Morgan v. Smith, 77 N.C. 87. * Campbell v. Cooper, 84 N. H. 49; 2 Kent’s Com. 258; Carew v. Rutherford, 106 Mass. 1; Berd v. Randall, 3 Burr. 1352; Haskins v. Royston, 70 N. C. 601. 5 Boston Glass Manuf. Co. v. Binney, 4 Pick. 425. As to measure of damages, see Lee v. West, 47 Ga. 311. THE FARMER AND HIS LABORER. 5 Sect. 4. Abandoning Service without Cause. Where a farmer employs a laborer for a definite time, and before the expiration of the term he voluntarily leaves, without cause or the consent of the farmer, the laborer cannot recover any part of his wages, since he is not justified in leaving before rendering the entire service which he contracted to perform,! whether he has agreed to stay for the year at one round sum, or for a year at so much a month? But in New Hampshire the law is different. The leading case in that State is Britton v. Turner,3 where the plain- tiff entered into the service of the defendant under a contract to serve him one year at $125, and after re- 1 Where a person voluntarily fails in the performance of an entire contract for service, he can recover nothing for services rendered under it. Patnote v. Sanders, 41 Vt. 66; Hennessey v. Farrell, 9 Cush. 267; Davis v. Maxwell, 12 Metc. 286; Aaron v. Moore, 34 Mo. 79; Boyd v. Boyd, 4 McCord (S. C.), 246; Shaw v. Turnpike Co., 2 Penn. St. 454; Larkin v. Buck, 11 Ohio St. 561; Dover v. Plummons, 10 Tred. (N. C.) 23; Hogan v. Plummons, 16 Cal. 73; Angle v. Hanna, 22 Ti 429; Hansell v. Erickson, 28 Id. 257; Jewell v. Thompson, 2 Litt. (Ky.) 52; Morford v. Ambrose, 3 J. J. Mar. (Ky.) 688; De Camp v. Stevens, 2 Blackf. (Ind.) 24; Miller v. Goddard, 34 Me. 102; Green v. Gilbert, 21 Wis. 395; Henderson v. Stiles, 14 Ga. 185; Whitely v. Murray, 34 Ala. 155; Marsh v. Rulesson, 1 Wend. 515; Lantry v. Parks, 8 Cow. (N. Y.) 63; Cody v. Raynoud, 1 Col. 272. 2 Davis v. Maxwell, 12 Metc. 286; Reab v. Moore, 19 Johns. 337. 3 6 N. H. 481. Where no time is agreed upon for payment, when the contract is only partially performed, an action cannot be maintained until after the lapse of a reasonable time for the performance of the whole contract. Davis v. Barrington, 30 N. H. 517; Smith v. New- castle, 48 Id. 70; Evans v. Hughey, 76 Ill. 115. As to the measure of damages in New Hampshire, see Elliot ». Heath, 14 N. H. 181; Barley v. Woods, 17 Id. 865; Clough v. Clough, 26 Id. 24. 6 FARM LAW. maining in his service nine months left, without justifi- able cause, and it was held that he could recover what his services were reasonably worth, less the damage to the defendant by reason of non-performance. The doctrine of this case has been followed in Indi- ana, Iowa,? Mississippi? and Texas;* but it has not met with general favor, and in nearly all the States, the full performance of an entire contract for services must precede a right of recovery, and a failure in that respect even to the extent of a single day is fatal to the laborer’s right to recover any wages.® If the farmer has made a partial payment to a laborer, who has left his service without legal excuse before his term expired, he cannot recover back the money, even though it was not due at the time of payment.6 And where he has given a note for the amount already earned, although the laborer has failed to complete his full term, he will be obliged to pay the note.” But the farmer has a remedy against the latter for his breach, and can recover such damages as he has sustained by such breach of the contract; and 1 Coe v. Smith, 4 Ind. 82; Recks v. Yates, 5 Id. 115. 2 Pixler v. Nichols, 8 Iowa, 106. * Downey v. Burke, 23 Mo. 228. 4 Carroll v. Welch, 26 Tex. 147. : 5 Wood’s Mas. & Ser., sect. 145. In England this rule is rigidly enforced. 6 Andrews v. Portland, 35 Me. 475; Winn v. Southgate, 17 Vt. 855; Lord v. Belknap, 1 Cush. 279. 7 In Thorpe v. White, 13 Johns. (N. Y.) 53, the defendant gave the plaintiff a note for wages already earned under an entire contract not fully performed, and it was held that the defendant could not defend against the note, upon the ground that plaintiff had left his service before his term was ended. Hutchinson v. Wetmore, 2 Cal. 310. THE FARMER AND HIS LABORER. 7 the laborer cannot set off against his claim the value of the work he has done and not been paid for! It is no defence that the laborer honestly believed that his term was ended;? and the farmer is not obliged to take him back if he has given notice that he does not intend to return, even though he returns to work at the usual time the next morning? ‘ If, however, he is prevented by illness from complet- ing the contract, he may recover pro rata for the ser- vices actually rendered.+ Sect. 5. Abandoning Service for Cause. If the farmer who is to furnish board and lodgings to the laborer, as part of his contract, does not provide him with sufficient and wholesome food, or suitable and comfortable lodgings,’ or treats him improperly, as by assaulting him, the laborer is justified in leaving® The same may be said if he compels him to work on Sunday’ (other than to do the necessary farm-work, as care of live animals); or any act or neglect of the far- mer prejudicial to the morals, reasonable comfort, safety, 1 Word v. Winder, 16 La. Ann. 111; Stephens ». Beard, 4 Wend. 605. 2 Winn v. Southgate, 17 Vt. 355. °8 Norris v. Moore, 3 Ala. 676; Posey v. Garth, 7 Mo. 94; Winn v. Southgate, 17 Vt. 355. * Fenton v. Clark, 11 Vt. 557. 5 Gillis v. Space, 63 Barb. (N. Y.) 177. By statute in England the master’s neglect to provide necessary food, &., is an indictable offence by statute. See 14 & 15 Vict. 11. 8 Matthews v. Terry, 10 Conn. 455. 7 Com. v. St. Germans, 1 Browne (Penn.), 24; Warren v. Smith, 8 Conn. 14. 8 FARM LAW. health, or reputation of the laborer will justify him in abandoning the service. But harsh language used to the laborer, or the fact that he had a difficulty with another laborer, will not justify him in leaving before his time has expired? The habitual use of blasphemous language by the farmer will exonerate a laborer in leaving his employ. It is a question for the jury to decide whether the laborer had a reasonable excuse for abandoning the service, the burden of proof being upon him to estab- lish that fact.* There are many instances in which a laborer is justi- fied in leaving the farmer's service before the term is ended, but it is impossible to enumerate them all. In every case where a good cause exists for leaving, the laborer may leave, and compel the farmer to pay for the time he has actually worked. — Sect. 6. Farmer liable on Laborers Contracts. The farmer is liable for contracts of his laborer, made in the course of his employment about the former’s business; but such contract, in order to be binding, must be within the scope of his authority, expressly conferred or implied from the farmer’s conduct. Thus, a laborer who is engaged in work about the house, and who is in the habit of purchasing the family supplies, might buy such supplies in the name of the farmer, 1 Forsyth v. Hastings, 2 Vt. 646; Marsh v, Rulesson, 1 Wend. 515. 2 Mullen v. Gilkinson, 19 Vt. 503. 8 Matherson v. McKinnon, 10 Sh. (Sc.) 825. # Chapman v. Coffin, 14 Gray, 454. THE FARMER AND HIS LABORER. 9 and the latter would be compelled to pay for them even if the laborer had no order to buy, or was, in so buying, defrauding his principal and obtaining goods for him- self; but if his usual employment is farm work, and not connected with household work, and he has never been permitted by the farmer to make purchases, he cannot bind the farmer by going to the store and buy- ing goods, simply by reason of his being a laborer and pretending to have authority. If the laborer assumes to act for the farmer in a matter in which he has no authority, the farmer may ratify his acts, when they will be as binding as if he had previous authority? Srct. 7. Liability of Farmer for Injuries committed by his Laborer. The farmer is responsible in damages to third persons for any act of his laborer occasioning an injury, occur- Ting through negligence, fraud, deceit, or even wilful misconduct, if it be done within the scope of his em- ployment; and it makes no difference that the farmer did not authorize or even know of the laborer’s act or neglect. In a Vermont case,? a farmer puta bag containing 1 Chandler v. Coe, 54 N. H. 561; Maryland Coal Co. v. Edwards, 4 Hun (N. Y.), 482; Hockster v. Barcell, 5 Daly (N. Y.), 440. 2 Wood's Mas. & Ser., sect. 265. Ifa laborer has once had author- ity to contract in the farmer’s name, and the authority is revoked without his knowledge, he would not be liable for contracts entered into in name of the farmer, without being informed of such revocation. Ginochio v. Porcella, 3 Bradf. (N. Y.) 277; Cassiday v. McKenzie, 4 Watts & Serg. 282. 8 Tuel v. Weston, 47 Vt. 634. 10 FARM LAW. barley into his wagon under his shed. In two or three days thereafter his laborer took the bag from the wagon, supposing it to contain oats, and carried it to a place where he was drawing logs for the farmer, to feed his horses. Finding his mistake, the laborer used some of the barley, and then put an iron bolt which he had been using as a clevis-pin into the bag, carried the same home and put it into the wagon where he found it, without informing the farmer of what he had done. Soon after, the farmer, not knowing what his laborer had done, nor that the bolt was in the bag, filled it with ears of corn and carried it to the plaintiff's mill to be ground, and in grinding, the bolt got into the corn-cracker and injured it. The court held that the farmer was liable for the damage. Even if the laborer in the commission of the act has wilfully violated the farmer’s orders, if the act was done in the course of his employment, the farmer is answerable.! But the farmer is not responsible for any act or omission of his laborer which is not connected with the business for which he was engaged, and does not happen in the course of his employment.2 Thus, where a la- borer was employed to harrow in one field and watch 1 Levi v. Brooks, 121 Mass. 501; Philadelphia, &c. R. R. Co. v. Derby, 14 How. (U. S.) 468; Robinson v, Webb, 11 Bush (Ky.), 464; Snyder v. Hannibal, &c. R. R. Co., 60 Mo. 413; McGlothlin v. Madden, 16 Kan. 466; Hawes v. Knowles, 114 Mass. 518. 2 Knight v, Luce, 116 Mass. 586; Shaw v. Reed, 9 W. &S. 72; Harriss v. Mabry, 1 Ired. 240; Foster v. Essex Bank, 17 Mass. 500; Brown v, Purvis, 2 Har. & Gill, 316; Sheridan v. Charlick, 4 Daly, 338; Stone v, Hills, 45 Conn. 44; Stevens v. Armstrong, 6 N. Y. 435; Bard ». Yohn, 26 Penn. St. 482. THE FARMER AND HIS LABORER. 11 a fire in another, and he undertook to do more, and set fire to a pile of rubbish, from which fire escaped and burned the plaintiffs property, in an action for damages against the farmer, it was held that he was not liable, the court declaring the rule to be that, “where a servant acts under the special orders of his master, the master is not liable for his negligence in doing business not ordered.” 4 Sect. 8. Discharge for Cause. Every contract made by the farmer, for the hire of a laborer, whether for a month or year, a definite or indefinite time, is subject to the right of the farmer to discharge the laborer for sufficient cause, and destroy his liability for future wages. To justify a dismissal there must be on the part of the laborer, — 1st. A wilful disobedience of a lawful order; or, 2d. Moral misconduct, pecuniary or otherwise ; or, 3d. Habitual neglect. An instance of the first is a case where a farmer ordered his laborer to go with the horses a mile off just as dinner was ready, and he refused to go until after he had his dinner.” But in all these cases, where the misconduct is slight and a first offence, there is a strong tendency to ex- cuse the laborer. Still, a wilful disobedience of lawful 1 Wilson v, Peverly, 2 N. H. 548; and see Oxford v. Peter, 28 Til. 434, 2 Spain v. Arnott, 2 Stark. 256. 12 FARM LAW. orders, as well as insulting language used by the laborer, will be ground for his discharge. If the conduct of the laborer is immoral? or he is habitually drunk,? or embezzles,* or in fact does any act which indicates fraudulent behavior toward the far- mer, his dismissal would be justifiable.6 And unwar- ranted absence or neglect in the discharge of his duties, thereby causing injury or loss to the farmer, would justify the same course although the laborer did not intend to cause damage by his conduct.® In England, if a laborer is hired for a stated time, and misconducts himself so as to justify his discharge before his term has expired, he is not entitled to wages for the time during which he has served.’ But in this country it has been repeatedly held that he may re- cover whatever his services were actually worth to the farmer$ Sect. 9. Liability of Laborer to Farmer for Consequences of Misconduct. A laborer must reimburse the farmer when a third person has brought an action and recovered damages 1 Lilley v. Elwin, 11 Q. B. 742; Beach v, Mullin, 5 Vroom, 343. 2 Atkins v. Acton, 4 Car. & P. 208. 8 Consolis v, Gearhart, 31 Mo. 585. * Spotswood v. Barrow, 5 Exch. 110. § Dieringer v. Meyer, 42 Wis. 311. § Schouler’s Dom. Rel., sect. 462. 7 Lilley v. Elwin, 11 Q. B. 742; Beach v. Mullin, 5 Vroom (N. J.), 348. ‘ 8 Swift v. Harriman, 30 Vt. 607; Jones v. Jones, 2 Swan (Tenn.), 605; Eaken v, Harrison, 4 McCord (8. C.), 249; Robinson v. San- ders, 24 Miss. 391. He would not be liable for any damages the THE FARMER AND HIS LABORER. 13 against the farmer for injuries sustained in consequence of the laborer’s negligence or misconduct in doing the farmer’s work, or in executing his orders. The measure of recovery against the laborer is the judgment which the farmer has been compelled to sat- isfy, with costs and such reasonable counsel fees as he has paid or become chargeable with. In a Maine case,? Chief Justice Appleton said: “A servant is liable to an action at the suit of his master, when a third person has brought an action and recov- ered damages against the master, for injuries sustained in consequence of the servant’s negligence or miscon- duct; and in such action against the servant, the ver- dict against the master, in the action brought against him, is evidence as to the guantwm of damages, though not according to some of the English authorities, as to the fact of the injury.” Sect. 10. Zermination of Service. A contract for services may be dissolved by the ex- piration of the term for which the laborer was hired ; by mutual consent ;* by death of either party;* or by the laborer becoming unable to perform his duty, by reason of illness or permanent disability.® other party may suffer by employing another. Lawrence v. Gullifer, 88 Me. 532. But see Libhart v. Wood, 1 Watts & S. 265; Henderson », Stiles, 14 Ga. 135. 1 Arnot v. Pittstown, &c. Coal Co., 5 T. & C. (N. Y.) 143; 2 Hun (N. Y.), 591. 2 Grand Trunk Ry. Co. v. Latham, 63 Me. 177. % Stockley v. Goodwin, 78 Il]. 127; Boyle v. Parker, 46 Vt. 343. # Clark v. Gilbert, 26 N. Y. 279. 5 Hubbard v. Belden, 27 Vt. 645. 14 FARM LAW. The farmer must pay for the services actually ren- dered; and in case of death, the personal represent- atives of the laborer are entitled to recover from the farmer what his services were reasonably worth. Thus in Maine, where a party agreed to work on his farm for seven months, at $13 per month, and in making the contract it was estimated that his services would extend through haying-time, but the workman became sick, the Court held that a contract for the per- formance of manual labor for a stipulated time, requir- ing strength and health, must be understood to be subject to the implied condition that strength and health continue. Actual inability to perform the labor, arising from sickness at the commencement of the time, although it may not continue during the whole term contracted for, excuses the performance. 1 In cases where the act of God renders the performance absolutely impossible, the contract is discharged. Dickey v. Linscott, 20 Me. 453; Fuller v. Brown, 11 Met. 440; Seaver v. Morse, 20 Vt. 620. LANDLORD AND TENANT. 15 CHAPTER II. LANDLORD AND TENANT. Sect. 1. Right to remove Fixtures. 1 2. Distinction in Farming Leases as to Repairs. 8. Tenant's Right to cut Timber for Firewood and Repairs, 4, Covenant that Land is free from Incumbrances, 5. Obligation to pay Taxes. 6. Tenant’s Right to make Alterations. 7. Covenant not to Assign or Underlet. 8. Covenant to renew the Lease. 9. Form of a Lease of a Farm. SEcT. 1. Right to remove Fixtures. A TENANT, whether for life, for years, or at will, is permitted to carry away all such fixtures of a chattel nature as he has himself erected upon the demised premises for the purpose of ornament, domestic conven- tence, or trade, provided the removal can be effected without material injury to the freehold. Thus manure, which is not the product of agricultural lands but accumulates in a livery stable, furnaces, stoves, cup- boards and shelves, bells, gas-fixtures, marble chimney- pieces, grates, window blinds, curtains, &c., which are easily severed from the house, may be removed. But things which are attached to the house, as keys, doors, windows, closets, presses, and locks, cannot be taken away, for they are attached to the freehold. And the 16 FARM LAW. law is the same where the tenant has made additions to the farm by erecting greenhouses, pigsties, and sta- bles. The tenant would have no legal right to remove shrubbery or flowers planted by him in the garden. “This privilege, however,” says a learned writer, “has not usually been extended to the case of buildings, out- houses, &c., which have been erected for agricultural purposes; though it is difficult to perceive why such fixtures should rest upon a less favorable footing than trade fixtures, when the relative importance of the two arts to the community is considered. The indus- try of the farmer will of course be more productive in proportion to the improved condition of his build- ings and his advantages for moving stock and storing produce; and it seems but a narrow policy which refuses to the agricultural tenant the same protection that is extended to the improvements of the manufacturer.” Judge Story! questions the above doctrine, while in Massachusetts? the rule applicable to trade fixtures was extended to an agricultural tenant who was per- mitted to remove all improvements the removal of which would not injure the property of the landlord. The removal of fixtures by the tenant must be made before his term expires, or at least before he surrenders possession. If he leaves without removing them, they revert to the landlord immediately upon the termina- tion of the lease.® 1 Van Ness v. Pacard, 2 Pet. 137. 2 Wing v. Gray, 36 Vt. 261. 8 Gaffield v. Hapgood, 17 Pick. 192; Stockwell v. Marks, 17 Me. 455; Beers v. St. John, 16 Conn. 322. LANDLORD AND TENANT. 17 SECT. 2. Distinction in Farming Leases as to Repairs. Independently of any express agreement on the part of the tenant, and in the absence of the landlord’s undertaking to keep the premises in repair, the law imposes upon the tenant that obligation, and he is bound to make ordinary tenantable repairs, such as to keep the house wind and water tight, to repair windows and doors broken by him, but not to make lasting repairs! As stated by Chief Justice Savage,? “it is not in the power of a tenant to make repairs at the expense of his landlord, unless there be a special agreement between them authorizing him todoso. The tenant takes the premises for better or for worse, and cannot involve the landlord in expense for repairs with- out his consent.” But as to farming leases a distinction exists, and the tenant is bound only to repair the dwelling-house, and not the out-buildings and other erections on the farm. They are sustained either by the landlord or tenant (in the absence of any express agreement in the lease), according to the particular custom of the place in which the farm is situated. Unless there is a provision made in the lease ex- cepting the tenant from making repairs, he is obliged to make them, and to continue the payment of rent during the term, although the premises may become untenantable for want of repairs, or from any other 1 Kramer v. Cook, 7 Gray, 550. By statute in New York and Louisiana the landlord must keep the premises in repair. 2 Munford v. Brown, 6 Cow. 475. 2 18 FARM LAW. cause, or should be burnt down.! If the premises are insured, the tenant cannot compel the landlord to ex- pend the insurance money in rebuilding, unless the landlord has expressly engaged to do so.2 And a cove- nant to repair is of itself sufficient to bind the tenant to rebuild in case of fire or any other accident, unless there is a provision excepting “fire, storm, or any other unavoidable contingency.” While this clause will exonerate the tenant, it will not of itself bind the landlord to restore the premises. Sect. 3. Tenant's Right to cut Timber for Firewood and Repairs. A tenant has a right to take wood from the land for fuel, fences, agricultural erections, and other necessary improvements; but to cut trees that are not timber, and which are growing in defence of or to ornament the farm, or to injure fruit-trees growing in an orchard or garden, will amount to waste.? He cannot cut firewood to sell, nor can he cut any for any purpose, so long as there is sufficient dead-wood on the premises for his consumption. Not only local custom, but the particu- lar circumstances of the case, must be taken into ac- count in determining whether the cutting of any given wood is waste or not. 1 Moffatt v. Smith, 4 N. Y. 126; Leavitt v. Fletcher, 10 Allen, ma Carter v. Rockett, 8 Paige, 437. * Hubbard v. Shaw, 12 Allen, 120; Walters v. Hutchins, 29 Ind. 136; Harris v. Goslin, 8 Har. (Del.) 340; Howley v. Wolverton, 5 Paige, 522. LANDLORD AND TENANT. 19 A tenant, whether for life or for years, may cut timber trees for the necessary repairs of the house and fences, even though he has agreed to repair at his own charge; but then it must be for the repairs of such buildings as were on the premises when he entered into possession, and not for such’ as he may have subse- quently erected. Sect. 4. Covenant that Land is free from Incumbrances. This is a covenant which the law will imply, for without this a tenant might be deprived of his term by reason of some prior incumbrance, or be subjected to the burden of some inconvenient easement unknown to the tenant when he accepts the lease, and have no adequate redress for the injury he may sustain. And it may be well, therefore, for a lessee, before accepting a lease, to inquire whether the lessor himself may not hold for a term of years; and if so, whether there may not be some restriction in his lease that may render the property unfit for the purpose he designs it for, and whether the rent reserved on the original lease, with the taxes and assessments in respect thereto, have been paid. It is not necessary, in order to maintain an action on this covenant, that the tenant should be actually ousted by the holder of the incumbrance, the mere liability or chance that he may be disturbed being a breach of the covenant; but nothing more than nominal 1 Harder v. Harder, 26 Barb. 409. 20 FARM LAW. damages can be recovered before an actual injury has been sustained. Szor. 5. Obligation to pay Taxes. The landlord must pay the taxes and lawful assess- ments upon the premises during the term; but if the tenant pays the taxes, he may look to the landlord for it, and recover the amount paid in an ordinary suit at law, or deduct it from the rent. But a tenant can bind himself to pay taxes, or even for extensive improvements, by an express covenant to that effect. In Massachusetts,? under the tenant’s covenant to pay taxes and assessments, he is liable, not merely for the expense of the improvement, but in pro- portion of the betterment, so called; that is, of the assumed benefit resulting to the whole estate, even when the covenant is to pay taxes and duties only. The courts of England and this country, however, are not inclined to follow the Massachusetts doctrine. Sect. 6. Zenant’s Right to make Alterations. The right which a tenant enjoys is to make use of the property. The power to make an alteration does not arise out of a mere right of user; it is, therefore, incompatible with his interest for a tenant to make any alterations, unless he obtains the express permission 1 Jenkins v. Hopkins, 8 Pick. 346; Dimmick v. Lockwood, 10 Wend. 142; Garfield v. Williams, 2 Vt. 327. 2 Walker v, Whittemore, 112 Mass. 87; Simonds v. Turner 120 Mass. 328. LANDLORD AND TENANT. 21 of his landlord! While this is the common-law rule, it is somewhat modified by the courts of this country, and a tenant may put new structures or other im- provements on the property, if it can be done without destroying or materially injuring the buildings or other improvements already existing thereon. But he would not be justified in pulling down valuable buildings, or making improvements or alterations which will materi- ally and permanently change the nature of the property, so as to make it impossible for him to restore the prem- ises at the expiration of the term, substantially as he received them.? Sect. 7. Covenant not to Assign or Underlet. A tenant has the right to assign his lease or underlet the premises, unless he is restrained by the terms of the lease. An assignment is a transfer of the tenant’s interest in the whole or a part of the premises for the residue of the term, while a sub-lease is a transfer of such interest for a part of the residue.® A covenant not to assign or underlet the premises without the express permission of the landlord, accom- panied by a clause of re-entry in case of breach, is frequently inserted in a lease. If a tenant assigns or underlets his tenancy, and the person to whom he as- signs fails to pay the rent, the original tenant is liable 1 Agate v. Lowenbein, 57 N. Y. 604. 2 Winship v. Pitts, 3 Paige, 259. 8 Patten v. Deshon, 1 Gray, 380. 22 FARM LAW. to an action for the rent, unless the landlord has ex- pressly absolved him from responsibility by accepting the new tenant.1 Sect. 8. Covenant to renew the Lease. Another covenant, sometimes inserted in a lease on the part of a landlord, adding much to the stability of a lessee’s interest, and affording an inducement to per- manent improvement, is that he will renew the lease at the expiration of the term, for the same or some other period mentioned. Under this covenant the lessor is bound to make another lease of the premises, either to the lessee or his assignee. Sometimes, instead of a covenant for a renewal, it is agreed that the tenant may have the privilege or option of a further term. In this case, if notice is stipulated for, it must be given; but if not stipulated for, the ten- ant’s mere continuance in possession and paying rent, though with no express notice of his desire for the further term, entitles and binds him thereto.? The law imposes no obligation upon a landlord, in the absence of any agreement, to pay the tenant for improvements he has made during his term; the ten- ant’s right in respect thereto having never been ex- tended further than to allow him to remove them before the expiration of his term. And if he voluntarily quits possession of the premises before the expiration of the 1 O’Keefe v. Kennedy, 3 Cush. 325. 2 Clark v. Merrill, 51 N. H. 415; Kramer v. Cook, 7 Gray, 550; Delashman v. Berry, 20 Mich. 292; Holley v. Young, 66 Me. 520. LANDLORD AND TENANT. 23 term, although at the request of the landlord, or if the landlord re-enters during the term for non-payment of rent, the contract between the parties is ended and the lessee loses the value of his improvements, notwith- standing there may have been a stipulation in the lease providing for their appraisal at the end of the term and the payment of their value.} SEcT. 9. Form of a Lease of a Farm. This indenture, made the day of in the year of our Lord one thousand eight hundred and Witnesseth, that I (name and residence of the lessor) do hereby lease, demise, and let unto (name and residence of lessee) a certain farm or parcel of land, in the city (or town) of county of and State of with all the buildings thereon stand- ing, and the appurtenances to the same belonging, bounded and described as follows: (The premises need not be described quite so minutely or fully as is proper in @ deed or mortgage of land, but must be so described as to identify them perfectly, and make it certain just what premises are leased.) To hold for the term of from the day of yielding and paying thérefor the rent of And said lessee does promise to pay the said rent in four quarterly payments on the day of (or state otherwise just when the payments are to be made), 1 Lawrence v. Knight, 11 Cal. 298; Gudgell v. Duvall, 4 J. J. Marsh. 229; Smith v. Brown, 5 Rich. Eq. 291; Pope v. Henry, 24 Vt. 560. 24 FARM LAW. and to quit and deliver up the premises to the lessor or his attorney, peaceably and quietly, at the end of the term, in as good order and condition, reasonable and proper use thereof, fire and other unavoidable casualties excepted, as the same now are or may be put into by the said lessor, and to pay the rent as above stated, and all taxes and duties levied or to be levied thereon, during the term, and also the rent and taxes as above stated, for such further time as the lessee may hold the same, and not make or suffer any waste thereof; nor lease nor underlease, nor permit any other person or persons to occupy or improve the same, or any part thereof, or make or suffer to be made any alteration therein but with the approbation of the lessor thereto, in writing, having been first obtained; and that the lessor may enter to view the premises and make improvements, and to expel the lessee, if he fail to pay the rent and taxes as aforesaid, or make or suffer any strip or waste thereof, or fail to fulfil any of the obliga- tions hereinafter recited. That is to say, the said lessee hereby covenants and agrees that he will cultivate the said farm during all his possession of the same, in such manner as good hus- bandry requires, and, especially, that he will (here in- sert carefully and fully all the agreements which the parties have made respecting the cultivation of the farm, or to which the lessor intends to bind the lessee, and to which the lessee is willing to be bound). And the said lessor on his part covenants that he will, at the re- quest of the said lessee, renew the lease for the period of years, to begin at the expiration of his lease. LANDLORD AND TENANT. 25 In witness whereof, the said parties have hereunto interchangeably set their hands and seals the day and year first above written. A. B. [szat.] Signed, sealed, and delivered C.D. [sza.] in the presence of E. F, Assignment of a Lease by Lessee. This indenture, made this Ist January, 1884, between C. D., of, &c., of the first part, and E. F., of, &c., of the second part, witnesseth: That whereas A. B., of, &c., on the 15th day of December, 1879, executed and delivered unto the said C. D. a lease, under seal, of the store and premises numbered 500 on Bedford Street in said Boston, for the term of five years from the lst January, 1880. Now, therefore, the said C. D., in consideration of the sum of two hundred dollars to him paid by the said E. F., the receipt whereof, &c., and in further consideration of the covenants of the said E. F., hereafter contained, doth hereby assign, transfer, and set over unto the said E. F. the afore- said lease, the premises thereby demised, and all right, title, and interest in or under the same. To have and to hold the said demised premises for the residue of the term of the said lease. And the said C. D. hereby covenants with the said E. F. that the aforesaid lease is good and effectual in law and in nowise surrendered, forfeited, or rendered void or voidable ; that this assignment is valid and effectual to transfer the same ; and that the said E. F. and his representatives shall peaceably hold and enjoy the said demised premises for the residue of said term without any hinderance or interruption from him, the said C. D., or from any person claiming by, 26 FARM LAW. through, or under him, and shall be held harmless and in- demnified from all arrears of rent or other charges or incum- brances heretofore made or suffered by him, the said C. D., or by any person claiming or holding under him. And the said E. F. hereby covenants with the said C. D, well and truly to pay the rent which may hereafter become due according to the terms of said lease, and to perform all the covenants and agreements in said lease contained, which are to be performed on the part of the lessee. In witness whereof, the said parties hereunto, and to an- other instrument of like tenor, set their hands and seals on the day and year first above written. C. D. [seat] Executed and delivered E. F. [sean] in presence of G. H. Boston, lst January, 1879. I, the lessor in the within-assigned lease, hereby assent to the within assignment, provided, however, that this assent shall not operate to release the within-named lessee from any obligation under any of his covenants in the said lease contained. A. B. Short Form of Assignment to be indorsed on Lease. I, C. D., the lessee within named, in consideration of the covenants hereinafter contained, do hereby assign, transfer, and set over to E. F., of B., the within lease, the premises hereby demised, and all my right, title, and interest in and under the same. And I, the said E. F., in consideration of the foregoing assignment, hereby covenant with the said C. D. that I will pay the rent which may hereafter become due according to the terms of said lease, and perform all the covenants and LANDLORD AND TENANT. 27 stipulations in said lease contained, which are to be per- formed by the lessee. Witness our hands and seals, at Boston, this 1st January, 1884. C.D. [szat.] In presence of E. F. [szat.] G. H. I, the lessor within named, hereby assent to the foregoing assignment, AB Surrender of a Lease. In consideration of one dollar to me paid by Richard Has- tings, I do hereby surrender to the lessor the within written lease of the premises therein mentioned, and all my estate yet unexpired, which premises are free from incumbrances through me. To hold the same to the said lessor and his assigns forever. Witness my hand and seal, this fifth day of July, a.p. 1885. A. B. [sean] Executed in presence of Cc. D. Landlord’s Agreement. This is to certify that I have, this fifteenth day of June, 1885, let and rented unto Robert White my house and lot known as number 254 East Street, in the city of New York, N. Y., with the appurtenances, and sole and uninterrupted use thereof, for one year, to commence on the fifteenth day of July next, at the yearly rent of six hundred dollars, pay- able in equal sums of fifty dollars on the first day of each and every month. A. B. 28 FARM LAW. Notice to Quit. Mr. A. B.: Str, — You are hereby notified to deliver up to me pos- session of the house and lot known as No. 614 Charles Street, in the city of Boston, and to remove therefrom on the first day of November next, it being my intention to determine the tenancy. C. D., Landlord. Boston, Oct. 1, 1885. Tenant’s Notice of Leaving. Mr. A. B.: Please take notice that I shall, on the first day of May next, deliver up to you the premises I now occupy as your tenant, known as No. 56 Madison Street, in the city of Phila- delphia, it being my intention to determine the tenancy. C. D., Tenant. PHILADELPHIA, April 1, 1885. Notice to Quit by Landlord on Non-payment of Rent. Mr. A. B.: Str, —I hereby give you notice to surrender and deliver up to me the possession of the house and lot known as No. 65 Beacon Street, in the city of Brooklyn, the rent of which you have failed and neglected to pay for the past month; and to remove therefrom at the expiration of ten days from this date, according to law. Yours, &c., C. D. Brook.yn, April 1, 1885. LAW PERTAINING TO DOMESTIC ANIMALS. 29 CHAPTER III. LAW PERTAINING TO DOMESTIC ANIMALS. Sgcr. 1. The Right of Property in Animals. 2. Injuries to Persons or Property by Domestic Animals. 8. Dangerous Animals. 4. Wilful Destruction of Domestic Animals. Liability of the Possessor of Animals. Keeping Animals having an Infectious Disease. Injuries by Animals of Different Owners, Trespassing Animals. 9. Law of a Dog-fight. 10. Right to keep Watch-dogs. 11. The Right to kill Domestic Animals. 12. Pound Laws. Distraining Animals. 13. Liability under Statutes for Trespasses by Animals. sx Qe (a) Maine. (f) New York. (j) Mlinois. (b) New Hampshire. (g) New Jersey. (k) Michigan. (c) Vermont. (h) Pennsylvania. (1) Kansas. (d) Massachusetts. (i) Ohio. (m) California. (e) Connecticut. Sect. 1. The Right of Property in Animals. ANIMALS of a wild nature, while at liberty and un- claimed, are not subjects of absolute property; but wild animals tamed— such as wild geese; bees of a wild na- ture which have been hived and reclaimed ; doves which are in a pigeon-house, or in the nest, or in the custody of any person; partridges, when reared with a common 30 FARM LAW. hen and while they remain with her —are the subjects of property. In a Massachusetts case? Judge Gray states the law in the following words: “In regard to the ownership of live animals, the law has long made a distinction be- tween dogs and cats and other domestic quadrupeds, growing out of the nature of the creatures, and the purposes for which they are kept. Beasts which have been thoroughly tamed, and are used for burden, or husbandry, or for food, such as horses, cattle, and sheep, are as truly property of intrinsic value, and are entitled to the same protection as any kind of godds. But dogs and cats, even in a state of domestication, never wholly lose their wild natures and destructive instincts, and are kept either for uses which depend on retaining and calling into action those very natures and instincts, or else for the mere whim or pleasure of the owner; and therefore although a man might have such a right of property in a dog as to maintain trespass or trover for unlawfully taking or destroying it, yet he was held, in the phrase of the books, to have ‘no abso- lute and valuable property’ therein which could be the subject of a prosecution for larceny at common law, or even, according to some authorities, of an action of deti- nue or replevin, or a distress for rent, or which would make him responsible for the trespasses of his dog on the lands of other persons as he would be for the tres- 1 Amory v. Flynn, 10 Johns. 106; Wallis v. Mease, 9 Binney, 546; Goff v. Kilts, 15 Wend. 550; Commonwealth v. Chace, 9 Pick. 15. 2 Blair e¢ al. v. Forehand, 100 Mass. 136. LAW PERTAINING TO DOMESTIC ANIMALS. 31 passes of his cattle. And dogs have always been held by the American courts to be entitled’ to less legal re- gard and protection than more harmless and useful domestic animals.” + Sect. 2. Injuries to Persons or Property by Domestic Animals. As a general rule, the owner of ordinary domestic animals not naturally inclined to do mischief, as horses, oxen, sheep, and the like, is not liable for the injuries which they do to the property or person of another, so long as they are rightfully in the place where they do the mischief, unless it is shown that the particular ani- mal was accustomed to do mischief, or had an incli- nation to do so, to the knowledge of the owner? It is not, however, necessary to prove actual formal notice or positive knowledge in order to establish his liability, but if he has seen or heard things relating to the ani- mals which would be sufficient to satisfy a man of ordinary prudence and caution that they are ill-disposed and liable to do mischief, it is sufficient to require him to secure the animals in such manner as to prevent in- jury by them. But as to animals fere nature, such as lions, tigers, and the like, he who keeps them is lia- ble for any damage they may do, without notice, — on 1 State v. M’Duffie, 34 N. H. 523; Woolf v. Chalker, 31 Conn. 121; Brown v. Carpenter, 26 Vt. 638; Mitchell v. Williams, 27 Ind. 62; Tenny v. Lenz, 16 Wis. 566; Putnam v. Payne, 13 Johns. 312. 2 Hewes v. McNamara, 106 Mass. 28; Kittredge v. Elliott, 16 N. H. 77; Woolf v. Chalker, 31 Conn. 121; Marsh v. Jones, 21 Vt. 878; Van Leuven v. Lyke, 1 N. Y. 515; Smith v. Causey, 22 Ala. 568. 32 FARM LAW. the ground that by nature such animals are fierce and dangerous. An exception arises to the general rule requiring the owner of an animal to have knowledge of its vicious character in the case of dogs. In England and in many of the States of this coun- try, statutes have been passed whereby the owner of a dog will be liable for any injury done, even if he did not know of its vicious character ; and he would not be justified in allowing it to run at large, even on his own premises, for “the owner of a dog keeps it at his own risk, being, without regard to care or negligence, an in- surer against all the harm which he might reasonably have expected to ensue.”! In a Massachusetts case,? the plaintiff was driving along a public highway, and the defendant’s dog jumped at the horse and frightened him, so that he became unmanageable, ran and over- turned the carriage, damaging the same and other prop- erty. Before the accident the defendant knew of no mischievous or vicious propensity in the dog to attack persons or animals. The defendant offered evidence to show that the plaintiff was unlawfully travelling on Sunday, and not from necessity or charity ; but the judge ruled that these facts would not constitute a defence or prevent the plaintiff from recovering. In Connecticut, Pennsylvania, Wisconsin, and Ten- nessee want of knowledge is no defence; while in. 1 Pickering v. Orange, 2 Ill. 492; Loomis v. Terry, 17 Wend. 496 ; Woolfe v. Chalker, 31 Conn. 121; McCaskill v. Elliott, 5 Strobh. (S. C.) 196; Marsh v. Jones, 21 Vt. 378. 2 White v. Lang, 128 Mass. 598. LAW PERTAINING TO DOMESTIC ANIMALS. 33 Maine, New Hampshire, Massachusetts, and Michigan a similar law exists, and the owners are lable for double the amount of damages sustained, which may be increased threefold after actual notice to the owner of the animal’s disposition, in Maine, Vermont, Massa- chusetts, Rhode Island, and Wisconsin. The benefit of these statutes is not confined to the person directly injured. The parent or master of a child bitten by a dog may recover double damages. In New Hampshire and Massachusetts the owner of any domestic animal, and in Wisconsin the owner of any sheep or lambs, may recover from the town for an injury inflicted by a dog. The owner of the injured animal may, if he chooses, sue the owner of the dog, instead of claiming his loss from the town; but if he elects to prove his damages to the supervisors of the town, and accepts an order on the town treasurer for the amount, his claim becomes, by operation of law, transferred to the town, which may recover against the owner of the dog; while the owner of the sheep cannot thereafter recover against him. By the law of Rhode Island, the first time a dog wor- ries sheep the owner may recover damages therefor from him who harbors or owns the dog; if after such first notice the dog still lives and injures sheep, his owner is liable for double damages, and the court wherein the action for damages is tried may order the dog to be killed. In Alabama, California, Vermont, and Wisconsin, double damages can be recovered. In Connecticut, when a person has suffered damage by dogs worrying or killing his sheep, he must give 3 34 FARM LAW. notice to the selectmen of the town in which the dam- age has been done, and the selectmen may bring suit for him against the owner or harborer of the offending dog; and unless the owner is reimbursed by this suit, the town becomes liable to the owner of the sheep for such damage. To make provision for such liabili- ties, all dogs are licensed, and the revenue from these licenses is held as a fund from which to meet this class of liabilities. Sot. 3. Dangerous Animals. The owner of wild and ferocious animals is liable for the injuries done by them to other animals or to per- sons, without proof of knowledge that they had com- mitted previous injuries. And any person who keeps a domestic animal, which to his knowledge is of a ferocious or mischievous disposition, is bound to re- strain it at his peril; and if it escapes and does damage the owner is liable for the injury committed, even though it resulted from the carelessness of the person injured, or he was a trespasser, if his own negligence did not contribute to the injury! Thus, where a man keeps a large and fierce-looking dog which is in the habit of running out to the highway and furiously barking or attacking persons passing along, or horses passing in the neighborhood, the owner will be liable 1 Popplewell v. Pierce, 10 Cush. 509; Oakes v. Spaulding, 40 Vt. 347; Congress & Empire Spring Co. v. Edgar, 99 U.S. 645; Muller v. McKesson, 73 N. Y. 195; Loomis v. Terrey, 17 Wend. (N. Y.) 496. LAW PERTAINING TO DOMESTIC ANIMALS. 35 if the dog bites a person, although it is not shown that it had previously bitten any person.? And the owner of a dog who keeps him near a pub- lic footway, or a path over which one has a right to pass, is liable to indictment for a nuisance if the way is a public footway, and to an action for an obstruction if it is a private footway. The owner of an animal is bound to disclose its vi- cious propensities in transferring it to another.2 One letting a biting or kicking horse to another for hire, or leaving it with a blacksmith to be shod, or with a hostler to be groomed, is bound to inform the party receiving the horse of his vicious habits of kicking or biting; otherwise he will be liable for the damages which may happen in consequence of these habits. A dog may be so ferocious as to become a public nuisance, and in such case, if the owner permits it to run at large, any person may kill it? Sect. 4. Wilful Destruction of Domestic Animals. A land-owner has no right to kill his neighbor's cat- tle when found trespassing, but must content himself with his legal remedies, of impounding them or bring- ing a suit at law. And this rule applies as well to fowl not fere nature as to other animals. 1 McCaskill v. Elliott, 5 Strobh. (S. C.) 197, 2 Campbell v. Page, 67 Barb. 113. 8 Brown v. Carpenter, 26 Vt. 638; Maxwell v. Palmerton, 21 Wend. 407; Woolf v. Chalker, 31 Conn. 121. 36 FARM LAW. Notice given of an intention to kill would be a mere threat to do an illegal act, and would not vary the case.4 It has been decided that the poisoning of a man’s hens, after complaint of repeated trespasses and warn- ing of an intent to kill them, was a wrong for which an action would lie? And it is unlawful for a man to tempt his neighbor’s animals into danger by setting traps on his own land, baited with strong-scented meat, or other similar contrivances, by which they may be allured to destruction? In a Massachusetts case, a dog which had bitten two persons was kept chained in the daytime in the plain- tiff’s yard by a chain ten feet long, and taken into the plaintiff’s house at night. It was proved that, although the dog was a dangerous animal, accustomed to bite those who came near it, it was otherwise kept accord- ing to law, and the defendant had not been attacked by the animal; and the court held that the act of the defendant in killing it was not justifiable. There are statutes passed in some of the States making it a crime to maliciously injure domestic animals. In Maine,* “whoever wilfully or maliciously kills, wounds, maims, disfigures, or poisons any domestic animal, or expose any poisonous substances with intent that the life of any such animal shall be destroyed thereby, shall be punished by imprisonment not more than four years, 1 Clark v. Keliher, 107 Mass. 406; Johnson v. Patterson, 14 Conn. 1. 2 Clark v. Keliher, 107 Mass. 406. 8 Townsend v. Walker, 9 East, 277. * Rev. Stat. Maine, chap. 127, sect. 1. LAW PERTAINING TO DOMESTIC ANIMALS. 37- or by a fine not exceeding five hundred dollars.” The above is substantially the law in New Hampshire, Vermont, Massachusetts, and most of the States; al- though the fines and term of imprisonment vary in some degree. To constitute malicious mischief, at common law, in injuring animals, malice toward the owner is essential. Such malice must be averred and proved. It will not be inferred from a merely injurious act, such as kill- ing the animal of another; and this rule has been adopted in the several States in the construction of their statutes. Sect. 5. Liability of the Possessor of Animals. Not only the owner of an animal is liable for its acts, but one who harbors, or allows it to be upon his prem- ises, or resort to them, is likewise liable.2 But one who permits a dog to remain temporarily upon his premises, as in the case of one who keeps boarders for pay, and permits such boarders to have or keep on his premises a dog, is not able; only he is liable who, having the possession and control of a house or premises, suffers and permits a dog to be left on the premises in the way such domestic animals are usually kept, —as a member of the family, so to speak.? However, a per- 1 Commonwealth v. Brooks, 9 Gray, 303; Commonwealth v. Sowle, Ib. 304. 2 Marsh v. Jones, 21 Vt. 378; Wilkinson wv. Parrott, 32 Cal. 102; Frammell v. Little, 16 Ind. 251. 3 Cummings v. Riley, 52 N. H. 368; Barrett v. Malden & Melrose R. R. Co., 3 Allen, 101. 38 FARM LAW. son is not responsible for the acts of an animal which he strives to drive away from his premises. For in- stance, where a dog hung about a railroad station and attacked a lady, and complaint was made to the com- pany’s servants, who promised to drive it off, and after finding it in the signal-box a man drove it out, and it ran off to the platform and bit a passenger, the court decided that the railroad company was not liable, as it had not been shown that the company was guilty of negligence.? Szct. 6. Keeping Animals having an Infectious Disease. The keeping of animals having an infectious disease is not in itself an act of culpable negligence. The owner will not be liable for the communication of the disease to other animals, without proof of some fault on his part other than the mere keeping of such animals on his premises; nor does the fact that his neighbor keeps, to his knowledge, healthy animals upon the adjoining lot alter the case. And even the keeping of diseased animals on unenclosed ground, to which other animals are in the habit of coming, and where it is no trespass for them to come, is not an act of negligence, if the owner of the healthy animals is duly warned of the danger.? For example, where the owner of sheep affected with the scab sent word to his neighbor that he intended to 1 Smith v. Great Eastern R. R. Co., L. R. 2C. P. 4. 2 Fisher v. Clark, 41 Barb. 329. LAW PERTAINING TO DOMESTIC ANIMALS. 39 turn them into his own field adjoining that of such neighbor, where the latter had a flock of sheep un- affected by the disease, and the neighbor protested against it, and for the time being the owner of the diseased sheep gave up his design, but afterwards turned them into his field without any further no- tice, and the fences being bad, some of the unaffected flock escaped through the partition fence, caught the disease and carried it back to the unaffected flock, it was held that the neighbor had no cause of action against the owner of the diseased sheep, since he had a right to use his own land for pasturage, regardless of the consequences, and was not liable so long as he kept his sheep on his own land? But while one has a right to use his own premises as a hospital for his diseased animals, he has no right to allow those afflicted with a contagious disease to tres- pass upon the lands of another, or to go at large in the highway, or even to water them at a public tank used for watering animals.” And if the owner of glandered horses takes them upon the farm of another person having sound horses, which become infected with the disease and die of it, he will be responsible.? So, when diseased sheep are permitted by their owner to trespass upon the lands of another person, whose sheep become sick and die in consequence, he is liable.‘ In nearly all the States there are statutory provi- 1 Walker v. Herron, 22 Tex. 55. 2 Mills v. N. Y. & H. BR. BR. Co., 2 Rob. (N. Y.) 826. 8 Fisher v. Clark, 41 Barb. 329. 4 Eaton v. Winnie, 20 Mich. 157. 40 FARM LAW. sions for the protection of animals from disease, and in some the right to kill any animal so diseased as to become a source of danger to other animals exists. In New Hampshire, whenever any dangerous and trouble- some disease prevails among animals, the Governor may appoint a board of five commissioners to make due ex- amination in the premises and prohibit the introduction into, or transportation through, the State of animals affected by infectious diseases. By statute in Massa- chusetts the mayor and aldermen of cities and select- men of towns, where there is any contagious or infec- tious disease among domestic animals, have authority to have them collected in some suitable place and kept isolated. The owners of animals suspecting disease among their animals must give notice immediately to the mayor or aldermen of the city or selectmen of the town where such animals are kept, and for failure to do so shall be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding one year. In Vermont, the owner of sheep infected with hoof-ail, foot-rot, or scab must keep them enclosed, and is liable for all damage caused to any person by their running at large. Several of the States have passed acts prohibiting the driving or bringing into their territory of any Texas, Mexican, or Indian cattle during certain sea- sons of the year, for the reason that cattle from those regions communicate a disease known as Texas fever to native herds, without any symptoms of disease being apparent in the cattle which bring the infec- tion. The constitutionality of these acts has been LAW PERTAINING TO DOMESTIC ANIMALS. 41 questioned and sustained in the State courts, but the United States Supreme Court has taken a con- trary view.? Sect. 7. Injuries by Animals of Different Owners. When several animals belonging to different owners unite in committing mischief, the owners cannot, at common law, be joined in a single action for the mis- chief done, since each owner is not liable for the acts of all the animals, but merely for those of his own’ In a Connecticut case,* where two dogs belonging to differ- ent owners made a raid on a flock of sheep, Chief Justice Swift said: “Owners are responsible for the mischief done by their dogs; but no man can be liable for the mischief by the dog of another, unless he had some agency in causing the dog to do it. When the dogs of several persons do mischief, each owner is only liable for the mischief done by his own dog; and it would be repugnant to the plainest principles of justice to say that dogs of different owners, by joining in doing mis- chief, could make the owners jointly liable. This would be giving them a power of agency, which no animal was ever supposed to possess.” There may be some difficulty in ascertaining the amount of damage done by each animal, but the jury 1 Wilson v. Kansas City, &c. R. R. Co., 60 Mo. 184; Sommerille v. Marks, 58 Ill. 371. 2 Railroad Co. v. Husen, 95 U.S. 465. 3 Buddington v. Shearer, 20 Pick. 477; Van Steenburgh ». Tobias, 17 Wend. 562; Russell v. Tomlinson, 2 Conn, 206; Adams v. Hall, 2 Vt. 9 * Russell v. Tomlinson, 2 Conn. 206. 42 FARM LAW. are at liberty to adopt any reasonable rule of assessing the damage for this purpose. If the animals are of une- qual size and strength, and have different capacities. for mischief, this may be taken into consideration in fix- ing the liabilities of the owners. Where two animals of unequal size are owned by different persons, and the animals together kill a num- ber of sheep, the jury may find that the larger animal did more mischief or damage than the smaller one, and apportion the damages accordingly.” By statutory enactments in Connecticut, Vermont, and Ohio the several owners of dogs which unite in doing injury are jointly liable therefor; but in Pennsyl- vania*® each owner is answerable for the whole damage done in which his dog is jointly engaged. SEcT. 8. Zrespassing Animals. The owner or occupant of land may drive off ani- mals trespassing upon it, and use any ordinary and rea- sonable means for this purpose. He may drive such animals into the highway ;* but if he drives them any further along the highway than is necessary to keep them off his land, he is responsible for any injury there- by caused to their owner, such as their loss by stray- ing. The occupant may turn off, in a similar manner, 1 Buddington v. Shearer, 20 Pick. 477; Partenheimer v. Van Order, 20 Barb. 479; Powers v, Kindt, 18 Kan. 74. * Wilbur v. Hubbard, 35 Barb. 303. * Kerr v. O’Connor, 63 Penn. St. 341. 4 Humphrey ». Douglas, 10 Vt. 71; Knour v, Wagoner, 16 Ind. 414, LAW PERTAINING TO DOMESTIC ANIMALS. 43 animals which are not trespassing, as where they come upon his land through defect of fences which it was his duty to maintain; but in such case, if the animals are owned by an adjoining proprietor to whom he owes this duty, he must drive them upon their owner's prem- ises, and not upon the highway, under pain of liability for their loss. A person may drive trespassing animals off his land by using a dog for the purpose, if he exercises ordinary care and prudence, considering the size and character of the dog, and the manner of setting him upon the animals.? For example, where the defendant, finding the plaintiff’s horse to have strayed upon his premises, set a ferocious dog upon it, and seriously injured it, the defendant was held responsible for the injuries thus inflicted. In the absence of statutory enactments requiring railroad companies to fence, the owner of animals is bound to use ordinary care and diligence for the pur- pose of preventing them from straying upon land properly enclosed; and if he allows them to wander unattended upon a railroad which is sufficiently fenced, he is liable for the damage done to a train which is thrown off the track by running over them, unless the railroad company is guilty of contributory negligence.* 1 Knour v. Wagoner, 16 Ind. 414; Clark v. Adams, 18 Vt. 425 ; Lord v. Wormwood, 29 Me. 282. 2 Davis v. Campbell, 23 Vt. 236; Wood v. La Rue, 9 Mich. 158. See McIntire v. Plaisted, 57 N. H. 606. 8 Amick v. O’Hara, 6 Blackf. 258. * Hannibal, &c. R. R. Co. v. Kenney, 41 Mo. 271. See Detroit, &c. R. R. Co. v. Barton, 61 Ind. 293. 44 FARM LAW Sect. 9. Law of a Dog-fight. When one dog kills or injures another, the owner of the latter may recover damages from the owner of the former, in a proper case; but in determining this ques- tion of liability, the nature of the species of animal must be taken into account. In a New York case,! the plaintiff had a small dog,—a pet, or sporting animal, — which followed him one evening to the defendant’s house, whither the plaintiff was going on business. The defendant had a large “fighting dog,” and was aware of his quarrelsome disposition. He attacked the plaintiff's dog, and killed him. The suit was for the value of the pet, and a recovery was had, the court say- ing that “where a dog which has the vicious habit of attacking other.dogs, without being incited to do so, is suffered to go at large, and he attacks and kills the dog of a person lawfully coming upon the premises where he is, his owner is liable in damages for the value of the dog so killed, when it is shown that such owner had knowledge of the viciousness of his dog.” Sect. 10. Right to keep Watch-dogs. A farmer may keep a dog for the necessary defence of his house, his garden, or his fields, and may cau- tiously use him for that purpose in the night-time; but if he permits him to be at large upon his premises, and a person is bitten by him, in the daytime, though the person injured be at the time trespassing on the grounds 1 Wheeler v. Brant, 23 Barb. 324; Wiley v. Slater, 22 Barb. 506. LAW PERTAINING TO DOMESTIC ANIMALS. 45 of the farmer, the latter is liable. It seems that a per- son is not permitted, for the protection of his property against a mere trespasser, to use means endangering the life or safety of a human being, whatever he may do where the entry upon his premises is to commit a fel- ony or breach of the peace; and where such means are used, the nature and value of the property sought to be protected must be such as to justify the proceeding. The principles of humanity must not be violated, or the owner will be subjected to damages for any injury which ensues! And a farmer will not be justified in placing a ferocious dog in the way of access to his house with such a length of chain that a person inno- cently going there for a lawful purpose in the daytime may be bitten by it. So, if the chain proves insuffi- cient to confine the dog, even though it is being teased by a child ;? and a notice in large letters, “Beware of the dog,” is put up by his owner, the owner of the dog will not be exempt from liability to a person injured, if the latter was lawfully on the premises, and was, in point of fact, ignorant of the notice.’ Sect. 11. The Right to kill Domestic Animals. Any person may lawfully kill a ferocious dog, which is accustomed to attack and bite mankind, when it is found at large on public highways or streets, without 1 Loomis v. Terry, 17 Wend. 496; Woolf v. Chalker, 81 Conn. 121. 2 Munn v. Reed, 4 Allen (Mass.), 431. See also Plumley v. Birge, 124 Mass. 57, where it was held that the fact that a boy thirteen years old struck the dog was not per se such negligence as would defeat a recovery. 8 Sarch v. Blackburn, 4 C. & P. 297. 46 FARM LAW. a muzzle or other means of preventing it from injuring persons.! And it has been decided that the inhabitant of a dwelling-house may lawfully kill the dog of an- other, where such dog is in the habit of haunting his house, barking and howling, by day and night, disturb- ing the peace and quiet of his family, if the dog cannot be otherwise prevented from annoying him.? A person may lawfully kill an animal when it is necessary for the preservation of his property, if the animal be found in the act of destruction® In New Hampshire,t an interesting case arose upon this sub- ject. A farmer had a flock of geese in a pond which were being pursued by four minks. Upon seeing the farmer they stopped pursuing the geese and ran out of the water on to an island for a moment, when the far- mer killed them all at one shot. A law of New Hamp- shire forbids any man to kill any minks, sable, or otter, between May and October, under a penalty of ten dol- lars for every animal so killed. The farmer was prose- cuted for this penalty. The court decided, in a very able and interesting opinion, that he had a right to kill them, notwithstanding the law, if necessary to protect his own property from destruction. By statute in Vermont, New York, Pennsylvania, Delaware, Ohio, California, Tennessee, Alabama, Min- nesota, Oregon, Illinois, New Jersey, and Mississippi, 1 Brown v, Carpenter, 26 Vt. 638; Woolf v. Chalker, 31 Conn. 121, 1380; Maxwell v. Palmerton, 21 Wend. 407. 2 Brill v. Flagler, 23 Wend. 354. * Brown v. Hoburger, 52 Barb. 15; Williams v. Dixon, 65 N. C. 416. 4 Aldrich v. Wright, 53 N. H. 398. LAW PERTAINING TO DOMESTIC ANIMALS. AT any person may kill a dog found worrying or injuring sheep. By the laws of Maine, Massachusetts, Rhode Island, Michigan, and Wisconsin, any person may kill a dog that suddenly assaults him while he is peaceably walk- ing or riding anywhere out of the enclosure of the owner or keeper. In New Hampshire, dogs may be killed when found without a collar around their necks, made of brass, tin, or leather, with the name of the owner carved or en- graved thereon. In Michigan, any person may, without rendering himself liable either criminally or by civil action, kill a dog that he may see chasing, worrying, wounding, or killing any sheep, lambs, swine, cattle, or other domestic animals out of the enclosure. The law of Maryland exempts the owner of a dog from liability for sheep killed by it, if he kills the dog immediately upon receiving notice of the injury; while if he fails to do so, the person whose sheep have been injured may kill the dog, and recover double damages. Ssct. 12. Pound Laws. Distraining Animals. When the animals of one person unlawfully go upon the lands of another, and there do damage, as by tread- ing down the grass, grain, or other productions of the earth, the owner (1) May seize the animals and put them in the town pound; or, (2) Can bring an action for the trespass and recover damages ; or, (3) May drive them off into the highway. 48 FARM LAW. As the pound laws are regulated by statutory enact- ments in all of the States, reference should be made to the laws of such States. But a general outline of this remedy as it exists in Massachusetts! will no doubt serve to enlighten the reader on this subject. Tf any person actually finds any sheep, swine, horses, or neat cattle doing any damage in his land, he may drive them to the town pound, or some other suitable place, giving them sufficient food and water; or he may shut them up in his own yard for a reasonable time before driving to the pound, and in the mean time send a memorandum to the owner of the animals, stating the cause of impounding them, the amount of damage done by them, the charges for feeding, &c., in order that the owner may come and pay the damages and take away the beasts. If he does not come, or if the party impounding prefers, he may, in the first instance, drive them to the pound, or send for a field-driver (abolished in some of the States) and request him to impound them, sending a similar memorandum to the pound-keeper, and also a written notice of the fact to the owner of the animals, within twenty-four hours, containing a description of the beasts, and a statement of the time, place, and cause of impounding them. Before the owner can reclaim his animals, he must pay the damages and all the expenses; and if he de- clines to do so, they may be sold by public auction, and the balance of the proceeds above expenses de- posited with the town treasurer for the benefit of the owner. However, if the beasts come lawfully on the 1 Pub. Stat. Mass., chap. 36, sect. 20-41. LAW PERTAINING TO DOMESTIC ANIMALS. 49 adjoining lands, and escape therefrom in consequence of the neglect of the person who suffered the damage to maintain his part of the division fence, the owner of the beasts shall not be liable for such damage. - If the owner of the premises place them in a public pound, he is not liable for any injury which the beasts may receive from cattle confined in the pound without his agency or knowledge.! It is the duty of a party impounding cattle to feed and water them as often as is required by the usage of. the country and good husbandry. Where, there- fore, a field-driver, in warm weather, took up milch- cows unlawfully going at large in the highway, and drove them to a town pound, and there restrained them from seven o’clock in the morning until five o'clock in the afternoon without giving them food or water, it was held that he was a trespasser ab initio.” The statutes of Maine, New Hampshire, Vermont, Massachusetts, and other States require towns to erect and maintain pounds, and for neglecting to do so they are liable to pay a fine. Sect. 13. Liability under Statutes for Trespasses by Animals, ° (a) Maine. — Where there is no prescription, agree- ment, or assignment under the statute whereby the far- mer is bound to maintain a fence, he is not obliged to fence against his neighbor’s fields; but each owner is 1 Brightman v. Grinnell, 9 Pick. 14. 2 Adams v, Adams, 13 Pick. 384. 4 50 FARM LAW. obliged at his peril to keep his cattle on his own land. Since the statute of 1834, no action can be maintained by either of two adjoining owners of land against any owner of cattle lawfully on the opposite side of a divi- sion fence, for breaking into his enclosure through a de- fect in such fence, if there has been no division of such fence, or assignment of distinct portions of it by fence- viewers, by agreement, or by prescription! The far- mer’s cattle are not lawfully upon his neighbor's land except by his consent, even if it be unfenced and they pass directly from the highway upon it, where they are permitted to go at large by a vote of the town.” (b) New Hampshire. —A farmer-is not bound to fence against cattle that are upon the highways, un- less they are rightfully there. And he has no right to turn his horses or cattle into the highway to graze, except in those parts of it where he is the owner of the soil through which it passes; and he will be respon- sible if his horse escapes into an adjoining field through defect of fences which the owner is bound to repair.® The farmer is not bound to fence against any cattle but such as are rightfully on the adjoining land‘ It is the occupier and not the owner of a farm that is bound to keep the fences in repair. When there are adjoining lands, with an undivided partition fence which each farmer is equally bound to keep in repair, each is bound to keep his cattle on his own land at his peril.® 1 Eastman v. Price, 14 Me. 419. 2 Lord v, Wormwood, 29 Me. 282, 3 Avery v. Maxwell, 4 N. H. 36. £ Lawrence v, Combs, 37 N. H. 381. 5 Glidden v. Towle, 31 N. H. 168. LAW PERTAINING TO DOMESTIC ANIMALS. 51 (c) Vermont.— The farmer is under no obligation to fence along the highway; his duty is to restrain his cattle from trespassing on his neighbor's land! If the farmer has. had his fences divided, pursuant to statute, and cattle stray into his neighbor’s field through neg- lect of the latter to fence, he cannot recover; but where not so divided, the farmer can recover.? (d) Massachusetts.— The obligation of the farmer to make and repair fences rests entirely upon statutory enactments. The farmer is only obliged to fence against cattle lawfully in the adjoining field® If he turns his cattle into the highway to graze, and they pass therefrom into an adjoining field through an in- sufficient fence, the owner of land may recover for the trespass, as the farmer’s cattle were not lawfully in the highway. And it seems that the farmer is responsi- ble if his animals escape while under his control in the highway and enter an unfenced lot abutting thereon, without the knowledge and consent of the owner there- of.6 Where the farmer is not bound by prescription, agreement, or assignment to maintain a division fence, he may sustain an action against the owner of cattle belonging to the adjoining neighbor, if they trespass upon his land through the division fence. (e) Connecticut.—Farmers are required to enclose 1 Keenan v. Cavanaugh, 44 Vt. 268. 2 Sorenberger v. Houghton, 40 Vt. 150. 3 Rust v. Low, 6 Mass. 90. 4 Lyman v. Gipson, 18 Pick. 422; Stackpole v. Healy, 16 Mass. 33. 5 McDonnell »v. Pittsfield, &c. R. R. Co., 115 Mass. 564; Thayer v. Arnold, 4 Mete. 589; Bronson v. Coffin, 108 Mass. 175. 52 FARM LAW. their lands by a lawful fence, or they can maintain no action for a trespass done thereon by the cattle of another! Where the defence to an action for tres- pass by cattle was that they entered through the plaintiff’s defective fence, it was held that this de- fence might be repelled by showing that the cattle were unruly.? (f) New York.— Every entry of the farmer’s animals upon another’s land without permission is a trespass, even though the cattle come from the highway, and the land be unfenced.? But should they escape into an adjoining field while being driven along a high- way, the farmer would not be responsible. A farmer, in order to excuse trespasses by his cattle through a division fence, must show that the cattle passed through a portion of the fence which was defective, and which his neighbor was bound to repair.‘ (g) New Jersey.— A farmer is liable if his cattle es- cape upon his neighbor’s land, between which a fence has never been erected; and owners of land are not required to erect statutory fences along the highways, to protect themselves from cattle suffered to run at large upon the public roads and pasture there. To entitle a farmer to recover damages for cattle tres- passing upon his land, he must show that his fence was lawful, that cattle broke through the fence, and 1 Wright v. Wright, 21 Conn. 344. 2 Hine v. Wooding, 37 Conn. 123. 8 Wells v. Howell, 19 Johns. 385. £ Deyo v. Stewart, 4 Denio, 101. 5 Coxe v. Robbins, 9 N. J. L. 368. 8 Chambers v. Matthews, 18 N. J. L. 368. LAW PERTAINING TO DOMESTIC ANIMALS. 53 that the appraisers were appointed as the statute directs.1 (h) Pennsylvania.—The farmer must have a sufii- cient fence, in order to maintain an action against his neighbor’s trespassing cattle? But if they agree not to make any common division fence, each is liable to the other for the trespass of his cattle? (i) Ohio. — In this State a statute was passed in 1865, prohibiting animals from running at large. A farmer who owns part of a division fence and fails to keep the part assigned to him in repair, whereby animals from the adjoining field break and enter upon his land, is remediless, unless he can show that the animals were dangerous and unruly, and that the defect in the fence was not the proximate cause of the damage.® (j) Ldlinois. — Cattle can run at large in this State. The farmer must have his lands surrounded by a good and sufficient fence, in order to recover for the trespass of cattle.® If a farmer’s cattle or hogs trespass upon his neighbor’s land through a division fence, by reason of its insufficiency, which the latter was bound to keep in repair, his neighbor is without remedy. (k) Michigan.—In this State a farmer must fence his lands, and will be precluded from recovering damages done by animals thereon if not fenced.’ The farmer 1 Brittin v. Van Camp, 2 N. J. L. 489. 2 Gregg v. Gregg, 55 Penn. St. 227. 8 Milligan v. Wehinger, 68 Penn. St. 235. 4 1 Sayler’s Stat. 877. 5 Phelps v. Cousins, 29 Ohio St. 135. 6 Seeley v. Peters, 10 Ill. 130. 7 Williams v. ‘Michigan, &c. R. R. Co., 2 Mich. 259. 54 FARM LAW. upon whose land his neighbor's cattle trespass may maintain an action without showing that the partition fence between himself and his neighbor was of lawful height, or that, if it had been apportioned, he kept up his part.? (1) Kansas. — Any farmer who has an insufficient fence is guilty of negligence, and he cannot recover for injuries done his crops by stock running at large or roaming upon his land through such insufficient fence. And this is the case even if the owner of the stock was himself chargeable with negligence, unless it amounts to a wilful, wanton, or malicious want of care.” (m) California. — A farmer is not guilty of negli- gence in allowing his domestic animals to run at large upon the “unenclosed commons;” but he cannot re- cover for injuries done by cattle breaking into his field, unless it is enclosed by a fence of the character de- scribed in the statute,? or at least by an enclosure equivalent to the statutory fence in its capacity to exclude cattle.* 1 Aylesworth v. Harrington, 17 Mich. 417. 2 Larkin v. Taylor, 5 Kan. 433. 3 Stat. April 27, 1855. 4 Comerford v. Dupuy, 17 Cal. 308. WARRANTY OF SOUNDNESS OF ANIMALS. 55 CHAPTER IV. WARRANTY OF SOUNDNESS OF ANIMALS. Srcr. 1. What constitutes Soundness and Unsoundness. 2. Expressions importing Warranty. 8. Defects covered by General Warranty. 4. Defects which constitute Unsoundness. Sect. 1. What constitutes Soundness and Unsoundness. THE meaning of the word “sound,” when applied to the sale and warranty of horses, sheep, cattle, &c., de- pends upon local custom and usage, as well as upon the circumstances of each case. The general rule as to soundness implies the ab- sence of any disease, or “seeds of disease,” in the ani- mal at the time which actually diminishes, or in its progress will diminish, his natural usefulness in the work to which he would properly and ordinarily be applied. Certain judges, however, differ as to what constitutes a breach of warranty of soundness, whether the disease or injury must be not temporary but permanent in its nature. The English cases lay down the rule, which has been followed in some of the States, and seems to be the more logical and reasonable doctrine, that any infirm- 56 FARM LAW. ity which renders an animal less fit for present use is unsoundness.? In the celebrated case of Elton v. Brogden,? it was proved and admitted that the horse was lame at the time of the sale; but the defendant undertook to prove that the lameness was of a temporary nature, and that he had become in all respects sound. Lord Ellenbor- ough said: “I have always held, and now hold, that a warranty of soundness is broken if the animal, at the time of the sale, had any infirmity upon him which rendered him less fit for present service. It is not nec- essary that the disorder should be permanent or incur- able. While a horse has a cough, I say he is unsound, whether that be temporary or prove mortal. The horse in question having been lame at the time of the sale, when he was warranted sound, his condition subse- quently is no defence to the action.” In New Hampshire a learned judge® said: “If a horse be afflicted with an infirmity which renders him less fit for immediate use than he otherwise would be, and less able to perform the proper and ordinary labor of a horse, it would seem but reasonable, that it should be regarded as an unsoundness, for which a party, selling the horse and warranting its soundness, should be held 1 Roberts v. Jenkins, 21 N. H. 116; Elton v. Jordan, 1 Stark. R. 127; Burton v, Young, 5 Harr. (Del.) 233; Kornegay v. White, 10 Ala. 255; Baron Parke in Coates v. Stevens, 2 Moo. & Rob. 157; Hook v, Stovall, 21 Ga. 69 ; Crouch v. Culbreath, 11 Rich. 9 ; Thompson ». Bertrand, 23 Ark. 730; Fondren v. Durfee, 39 Miss, 324; Schurtz v. Kleinmeyer, 36 Iowa, 392; Merrick v. Bradley, 19 Md. 50; Kiddell v. Burnard, 9 M. & W. 668. 2 4 Camp. 281. 8 Woods, J., in Roberts v. Jenkins, 21 N. H. 116, 119. WARRANTY OF SOUNDNESS OF ANIMALS. 57 responsible. Such an infirmity may well be supposed to be the occasion of damage to the purchaser. The intention and understanding of the parties to the war- ranty are, in such as well as in other contracts, to gov- ern their construction. It is in the use of a horse that his value principally consists. It may well be pre- ‘sumed then, that when a horse is purchased, he is pur- chased for service; and that it is with reference to his ability and fitness for service that a guaranty of sound- ness would ordinarily be required or given. And we can see no reason for supposing that the future fitness or usefulness of the horse would be likely to be more an object of solicitude on the part of the purchaser than his present fitness. And when we consider the subject- matter of such a guaranty, we can see no reason to suppose that, in such cases, the parties do not at least intend, by a general warranty of soundness, that at the time of the sale the animal is laboring under no disease or injury which, at the time or afterwards, does, or will diminish his natural and ordinary usefulness and fit- ness for service.” The doctrine declared by Lord Ellenborough has not been followed in Massachusetts and some of the other States. In Brown v. Bigelow! it was held that a bill of sale of “one horse sound and kind” is a warranty of soundness, upon which the seller is liable if the horse proves to be permanently lame, although the purchaser knew he was lame before the sale, and the seller then refused to give a warranty. Chief Justice Bigelow said: “The doctrine that a warranty of soundness does 110 Allen, 242. 58 FARM LAW. not include or cover patent and obvious defects rests on the reasonable presumption that the parties could not have intended the warranty to apply to a defect render- ing the horse unsound, which was seen and known to both parties at the time of the sale. But here the ap- pearance of the horse did not disclose actual unsound- ness. The unsoundness was not patent. Lameness may or may not make a horse unsound. If it was only ac- cidental and temporary, it would not be a breach of war- ranty; but if it was chronic and permanent, arising from causes which were beyond the reach of immediate remedies, it would be clearly a case of unsoundness. The reasonable inference is, that the warranty was in- tended to guard against the danger of loss in the event that the lameness proved serious and permanent.” ! Sect. 2. Expressions importing Warranty. No particular form of words is necessary to create a warranty, which may be oral or in writing. The word “warrant,” though customarily employed, need not, in fact, be used at all, and other expressions than “soundness” are frequently used. Thus, an ani- mal may be warranted “all right in every respect,” and similar words, indicate an express warranty. 1 Williams v, Ingram, 21 Tex. 300; Hill v. North, 34 Vt. 604; Fisher v. Polland, 2 Head (Tenn.), 314; Mulvany v. Rosenberger, 18 Penn. St. 203; Long v. Hicks, 2 Humph. 305; Dana v. Boyd, 2J. J. Marsh. 587; Hudgins v. Perry, 7 Ired. 102; Winsor v. Lom- bard, 18 Pick. 57. Parol evidence is admissible to show that the seller informed the purchaser at the time of the sale of the defect alleged. Schuyler v. Russ, 2 Caines, 202. As to “seeds of disease,” see Woodbury v. Robbins, 10 Cush. 520. WARRANTY OF SOUNDNESS OF ANIMALS. 59 A representation at the time of the sale of a horse that the animal is of any specified age! is a warranty that he is no older; or that he is “sound and perfect,” or “sound and right ;” and this includes the idea that the animal is well behaved.? A warranty that a mare is “all right in every shape” for a certain business, or even a general warranty of her soundness, does not protect the buyer against the consequences of the animal’s pregnancy? The warranty that a horse was “well broke” might include a warranty of “gentleness ;” but when the war- ranty was “sound every way and perfectly gentle,” the plaintiff cannot recover damages on the ground that the animal was not well broken or suitable to plow or to rake hay.* The language of an express warranty should not ex- tend beyond its reasonable significance by implication. Thus, a bill of sale of “one red horse six years old, which I warrant sound and kind,” contains a warranty of “soundness and kindness” only, and not the animal’s age, as that is a matter of description.® But generally the mere oral affirmation of the sound- ness of a horse or other animal, when exposed to sale and to the purchaser's inspection, is not a warranty, unless so intended by the parties. For instance, an 1 Burge v. Stroberg, 42 Ga. 88. 2? 2 Schouler’s Per. Prop. 340. 8 Whitney v. Taylor, 54 Barb. 536 ; Brown v. Bigelow, 10 Allen, 242. # Bodurtha v. Phelon, 2 Allen, 347. 5 Willard v. Stevens, 24 N. H. 271; Richardson v. Brown, 1 Bing. 344; Morrill v. Bemis, 37 Vt. 155. 6 Foster v. Caldwell, 18 Vt. 176; Osgood v. Lewis, 2 Har. & G. (Md.) 495; Erwin v. Maxwell, 8 Murph. (N. C.) 241. 60 FARM LAW. answer by the seller, given in reply to a question as to the soundness of a horse, “I think he is sound,” does not amount to a warranty,! nor the mere statement by the seller, that “the horse’s eyes are as good as any horse’s eyes in the world.”? And a written statement by the seller of a horse, that “he is sound to the best of my knowledge,” is a mere representation and not a warranty, or a bill of sale acknowledging the receipt of the price of a certain horse “considered sound.” + But an affirmation that a horse is not lame, accom- panied by the declaration of the owner that “I would not be afraid to warrant him,” is held to be enough to establish a warranty.® When a person buys a horse for a particular purpose, which is known to the seller, and the latter tells him the “horse is all right,” such representations amount to a warranty that the horse was reasonably fit for the use desired by the party. Thus, if the horse is pur- chased to be used in harness, the seller saying “he is all right,” and he is actually ungovernable in har- ness, though a good saddle horse, there is a breach of warranty. 1 Lindsay v. Davis, 30 Mo. 406. 2 House v. Fort, 4 Blackf. (Ind.) 293; Bigler v. Flickinger, 55 Penn. St. 279. 3 Myers v. Conway, 62 Ind. 474. 4 Wason v. Rowe, 16 Vt. 525. 5 Cook v. Moseley, 13 Wend. 277. 6 Smith v. Justice, 13 Wis. 600; Quintard v. Newton, 5 Robt. (N. Y.) 72; Richardson v. Mason, 53 Barb. 601; Little v. Wood- worth, 8 Neb. 281. WARRANTY OF SOUNDNESS OF ANIMALS. 61 Sect. 3. Defects covered by General Warranty. In a Vermont case, a farmer bargained for a number of sheep, and as a part of the agreement the seller war- ranted the sheep sound and free from foot-rot; on the next day, when the farmer went to pay for them as agreed upon, he discovered they were unsound, and believed they had the foot-rot, and the seller repeated his statements made at the time of the agreement, that “the sheep are sound and free from the foot-rot; that I will warrant them so.” It was held that the two interviews constituted but one trade and one war- ranty. Judge Wilson said: “It seems to be now well settled that the rule of law which exempts a vendor from liability upon a general warranty of soundness, where the defect is perfectly visible and obvious to the unaided senses,” does not extend to an apparent defect, to understand the true nature and extent of which re- quires the aid of skill, experience, or judgment. Nor is the rule applicable to a case where the vendor has resorted to any acts or representations in respect to the property, intended or naturally calculated to throw the purchaser off his guard, and induce him to omit such thorough examination of the condition of the property as he might, and very likely would, have made if he 1 Pinney v. Andrus, 41 Vt. 631. 2 Hill c. North, 34 Vt. 604; Marshall v. Drawhorn, 27 Ga. 275; Schuyler v. Russ, 2 Caines, 202; Bennett v. Buchan, 76 N. Y. 386 ; Williams v. Ingram, 21 Tex. 800; Fisher v. Pollard, 2 Head (Tenn.), 314, 62 FARM LAW. had relied solely upon his own judgment in making the purchase.” ? But a warranty may be so expressed as to protect the farmer against the consequences growing out of an obvious and patent defect.2 Thus, where the farmer bargained for a horse known to him to be affected with a swelled leg, but the seller agreed to deliver the horse at the end of a fortnight “sound and free from blem- ish,” it was held that the warranty included the defect above mentioned.® Sect. 4. Defects which constitute Unsoundness. The following defects and diseases have been held to constitute unsoundness in horses: Glanders;* corns ;5 bone spavin ;° blindness, or any organic defect ;7 back- ing or balking, when habit becomes confirmed.’ Biting, when dangerous, is a vice. Crib-biting, affecting the 1 Where the seller uses artifice, and thereby conceals defects, the warranty will apply. For instance, where a mule was shown in a dark stall, and the buyer overlooked the fact that it had crooked pastern joints, it was held that a warranty of soundness applied. Kenner v. Harding, 85 Ill. 264; Chadsey v. Greene, 24 Conn. 562; Robertson v. Clarkson, 9 B. Mon. 506 ; Henshaw v. Robins, 9 Met. 83. 2 Pinney v. Andrus, 41 Vt. 631; Thompson v. Botts, 8 Mo. 710; Hambright v. Storer, 31 Ga. 300 ; Scarborough v. Reynolds, 13 Rich. 98 ; House v. Fort, 4 Blackf. 293; Fisher v. Pollard, 2 Head (Tenn.), 314. 8 Liddard v. Kain, 2 Bing. 183. 4 Woodbury v. Robbins, 10 Cush. 520. 5 Alexander v. Dutton, 58 N. H. 282. 68 Watson v. Denton, 7 C. & P. 85. T House v. Fort, 4 Blackf. (Ind.) 294; Burton v. Young, 5 Harr. (Del.) 233. 8 Oliphant’s Law of Horses, 70. WARRANTY OF SOUNDNESS OF ANIMALS. 63 health, is a breach of warranty “against all vices,” or that a horse is “sound and right.”! Cough or lame- ness, as settled by the late English authorities, whether permanent or temporary, constitutes a breach of war- ranty of soundness.2?, Shying and rearing, when habit becomes confirmed, is a vice.? Mere badness of shape or defective formation which has not produced lameness at the time of the sale is not unsoundness.* Goggles in sheep has been held to be unsoundness. It is believed to be caused from too close breeding, and no means are known for discovering its existence until it shows itself by the death of a large proportion of the flock. 1 Washburn v. Cuddihy, 8 Gray, 480; Dean v. Morey, 33 Iowa, 120; Scholefield v. Roff, 2 Moo. & Rob. 210; Walker v. Hoisington, 43 Vt. 608. 2 Elton v. Brogden, 4 Camp. 281. 3 Holliday v. Morgan, 28 L. J. Q. B. 9. * Brown v. Elkington, 8 M. & W. 132. 5 Joliff v. Bendell, Ry. & M. 136. As to “ foot-rot” in sheep, see Pinney v. Andrews, 41 Vt. 631. 64 FARM LAW. CHAPTER V. THE LAW IN REGARD TO MANURE. Sxcr. 1. Ownership of Manure made on a Farm. 2. Ownership of Manure as between Landlord and Tenant. 3. Ownership of Manure as between Mortgagor and Mortgagee. Sect. 1. Ownership of Manure made on a Farm. MaNnvRE made upon a farm in the ordinary manner, from the consumption of its products, is generally con- sidered in this, country as belonging to the realty, and would pass with the farm if sold! This doctrine rests upon the ground that it is for the interest of good husbandry and the encouragement of agriculture that manure produced on a farm should be consumed upon it. A learned judge? in New Hampshire states the law as follows: “It must be regarded as settled in this State that, as between grantor and grantee, all manure made in the ordinary course of carrying on the farm, and which is upon the premises at the time of the sale 1 Kittredge v. Woods, 3 N. H. 508; Lassell v. Reed, 6 Greenl. 222; Stone v. Proctor, 2 Chip. 115; Parsons v. Camp, 11 Conn. 525; Fay v. Muzzey, 13 Gray, 53; Wetherbee v. Ellison, 19 Vt. 379 ; Goodrich v. Jones, 2 Hill, 142; Perry v. Carr, 44 N. H. 120; Gallagher v. Ship- ley, 24 Md. 418. 2 Eastman, J., in Plumer v, Plumer, 30 N. H. 558. THE LAW IN REGARD To MANURE. 65 and conveyance, will pass to the grantee as an incident to the land conveyed, unless there be a reservation in the deed ; and that it makes no difference whether it be in the field, or in the yard, or in heaps at the windows, or under cover. It is an incident and appurtenance to the land, and passes with it, like the fallen timber and trees, the loose stones lying upon the surface of the earth, and like the wood and stone fences erected upon the land, and the materials of such fences when placed upon the ground for use or accidentally fallen down.” But in New Jersey! it is held to be personal prop- erty and not to pass with the real estate as an incident, or part of it. In a Massachusetts case? a farmer negotiated for the purchase of the plaintiff’s farm, and the parties made a distinct oral agreement for buying the manure on the farm, the plaintiff agreeing to put up the manure for sale at auction, and the farmer to take it if he was the highest bidder. The plaintiff conveyed the farm to the farmer and put up the manure for sale at auction, but the farmer forbade the sale, claimed the manure as his own, and spread it upon the land. The court held that it was a conversion of the plaintiff’s property. And this is the law in Vermont.? So where the owner of 1 Ruckman v. Outwater, 4 Dutch. 581. 2 Strong v. Doyle, 110 Mass. 92. In Massachusetts it is held that manure from the barn-yard of the homestead of an intestate standing in a pile on the land, though not broken or rotten, and not in a fit condition for incorporation with the soil, is not assets in the hands of the administratrix, and she is not chargeable therewith as part of the personal estate. Fay v. Muzzey, 18 Gray, 53. 8 French v. Freeman, 43 Vt. 93. 5 66 FARM LAW. the land had gathered the manure upon it into piles for sale, and sold it as personal property, and then sold the land, it did not pass the manure. Sect. 2. Ownership of Manure as between Landlord and Tenant. Whatever manure is made by the consumption of the products of leased premises becomes the property of the landlord, though lying in heaps, and made by the cattle of the tenant from crops which belonged to him till consumed, even though the tenant be at will only. Chief Justice Shaw in Daniels v. Pond? said: “Ma- nure made on a farm occupied by a tenant at will or for years, in the ordinary course of husbandry, consist- ing of the collections from the stable and barn-yard, or of composts formed by an admixture of these with soil or other substances, is, by usage, practice, and the gen- eral understanding, so attached to and connected with the realty, that, in the absence of any express stipu- lation on the subject, an outgoing tenant has no right to remove the manure thus collected, or sell it to be removed, and that such removal is a tort, for which the landlord may have redress; and such sale will vest no property in the vendee.” The tenant, of course, has a qualified possession of the manure, for the purpose of using it on the farm; 1 Kittredge v. Woods, 3 N. H. 503; Lewis v. Lyman, 22 Pick. 487; Lassell v. Reed, 6 Greenl. 222; Middlebrook v. Corwin, 15 Wend. 169; Lewis v, Jones, 17 Penn. St. 262; Hill ». De Rochmont, 48 N.H. 87; Wetherbee v. Ellison, 19 Vt. 379. 2 21 Pick, 871. THE LAW IN REGARD TO MANURE. 67 but a sale by him vests the right of possession in the landlord. This rule does not apply to manure made in livery stables or in buildings unconnected with agricultural purposes, and out of the course of husbandry, or where the manure is made from products obtained elsewhere ; for the manure so made is personal property, and may be removed by the tenant at the close of his term? Thus, where a teamster owning a house and stable, with a small piece of land used as a back yard, but not cultivated, sold them, it was held not to pass a quantity of manure in the cellar of the stable, for that was personal property.? So if the manure be made from hay purchased and brought upon the premises by a tenant at will of build- ings only, who had the use of part of a barn for his cattle, the manure belongs to him. “Manure made in a livery stable,” says Judge Sar- gent, “or in any manner not connected with agricul- ‘ture, the tenant of the livery stable, or the person thus making the manure upon land of another, owns the manure entirely distinct from the real estate, and has the right to remove it or dispose of it as he pleases, by parol or bill of sale, as of any other chattel or personal property.” 1 Middlebrook v. Corwin, 15 Wend. 169; Lassell v. Reed, 6 Greenl. 222. 2 Plumer v. Plumer, 30 N. H. 558; Perry v. Carr, 44 N. H. 118; Goddard v. Gould, 14 Barb. 662; Wing v. Gray, 36 Vt. 261; Fletcher v. Herring, 112 Mass. 382. 3 Proctor v. Gilson, 49 N. H. 62. * Corey v. Bishop, 48 N. H. 146. 68 FARM LAW. In England,] it seems that an euienns tenant may sell or remove the manure. So in North Carolina, at any time before leaving the premises, a tenant may, in the absence of a covenant or custom to the contrary, remove all the manure made on the farm. Sect. 3. Ownership of Manure as between Mortgagor and Mortgagee. The general rule, that manure made upon a farm in the usual course of husbandry, is so attached to and connected with the realty that, in the absence of any agreement or stipulation to the contrary, it passes as appurtenant to the same, is applicable to a mortgagor im possession. He has no right when vacating the premises to re- move or sell such manure, but the title thereto is vested in the mortgagee as the owner of the freehold.® 1 Roberts v. Barker, 1 Car. & P. 809. 2 Smithwick v. Ellison, 2 Ired. 326. 5 Chase v. Wingate, 68 Me. 204; 28 Am. Rep. 36. THE SALE OF CROPS AND TIMBER. 69 CHAPTER VI. THE SALE OF CROPS AND TIMBER. Secr. 1. Contract of Sale. . The Right of a Tenant to Crops. . Growing Crops may be mortgaged. . Upon the Sale of a Growing Crop, is Possession or Delivery essential ? . Levy of Process upon Growing Crops. 6. Under Foreclosure of Mortgage of the Land, Crops go to Purchaser. 7. Successful Party in Ejectment entitled to Growing Crops. Bm OO Db On Sect. 1. Contract of Sale. THE seventeenth section of the Statute of Frauds applies to contracts for the sale of “goods, wares, and merchandise,” — words which comprehend all movable property. The fourth section enacts, among other things, “that no action shall be brought upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or his agent.” It is often a question whether a sale of growing crops or timber is governed by the seventeenth or by the fourth section; ¢.¢, whether the sale is of “goods, 70 FARM LAW. wares, and merchandise,” or of an interest in land. If the latter, then a written note or memorandum of the agreement is required, however slight in value the subject of sale may be; but if the crops are to be em- braced under the head of “ goods, wares, and merchan- dise,” as governed by the seventeenth section, then no note or memorandum is required if their value is less than $50; and if their value is $50 or more, a note or memorandum of the bargain must be made by the party to be charged thereby, unless he accepts part of the goods or gives something to the vendor by way of earnest. Growing crops, in the eye of the law, are divided into two classes: fructus naturales, or the natural growth of the soil, as grasses, timber, fruit on trees, &c.; and fructus industriales, or fruits produced by the annual labor of man in planting and reaping. Fructus industriales, even when growing in the ground, are considered to be chattels, but fructus naturales are held to be a part of the freehold, land or estate. The latter go to the heir, the former to the executor or administrator, and may be seized by the sheriff upon his levy.} Benjamin in his work on Sales divides the subject into two principles or propositions. The first is, that an agreement to transfer the property in anything at- tached to the soil at the time of agreement, but which is to be severed from the soil and converted into goods, before the property is transferred to the pur- 1 Evans v, Roberts, 5 B. & C. 886; Jones v. Flint, 10 Ad. & E. 753; Tidd’s Pract. 1039. THE SALE OF CROPS AND TIMBER. 71 chaser, is an agreement for the sale of goods, an execu- tory agreement, and therefore within the seventeenth section of the Statute of Frauds It is immaterial whether the subject of sale be fructus naturales or fructus industriales, grass and timber, or wheat and turnips. The sale is a sale of “goods, wares, and merchandise,” and not a sale of an interest in land? At one time there was an attempt to make a distinc- tion, in the case of fructus industriales, between a sale of mature and a sale of immature crops, and the latter, as a subject of sale, were considered to be an interest in land; but this distinction was expressly repudiated by Littledale, J., in Evans v. Roberts.2 This case es- pecially is an authority for the point that fructus industriales, even when growing in the soil, are chattels. Benjamin’s second principle is, that where there is a perfect bargain and sale, vesting the property at once in the buyer before severance, a distinction is made be- tween the natural growth of the soil, as grass, timber, fruit on trees, &c., which at common law are a part of the soil, and fructus industriales, fruits produced by the annual labor of man. The former are an interest in land, embraced in the fourth section; the latter are chattels, for at common law a growing crop, produced by the labor and expense of the occupier of lands, was, 1 Benjamin on Sales, sect. 118. 2 Evans v. Roberts, 5 B. & C. 836; Jones »v. Flint, 10 Ad. & E. 753; Smith v. Surman, 9 B. & C. 561; Sainsbury v. Matthews, 4M. & W. 343. § 6B. &C, 836. 72 FARM LAW. as the representative of that labor and expense, con- sidered an independent chattel. In England, the principle is carried still further, and it is there held that even when the property. is fructus naturales and passes before severance, yet if the evi- dence shows that they are to gain nothing by further growth in the soil, then to sell them as they stand is not a sale under the fourth, but under the seventeenth, section.2 The soil in such a case is considered merely a warehouse for the goods. An English case which has taken very advanced ground is Marshall v, Green.? It was there held that a sale of growing timber, to be taken away as soon as possible by the purchaser, was not a contract for the sale of land or any interest therein within the fourth section of the statute, but a sale of goods and chattels within the seventeenth section. Where the sale was of grass, the buyer to mow the grass, and of course to enter and take possession for that purpose, it has been held in England that the sub- ject of sale was an interest in land* But this case must be considered overruled by Marshall v. Green. The American cases are not all in accord with the English authorities. The principles above stated are fully adopted in Massachusetts and several other States, but elsewhere repudiated. In White v. Foster Judge Colt said: “A simple 1 Benjamin on Sales, sect. 120. 2 Benjamin on Sales (4th Am. ed.), sect. 126. 810. P. Div. 35. * Crosby v. Wadsworth, 6 East, 602. 5 102 Mass. 375-879. THE SALE OF CROPS AND TIMBER. 73 oral contract for the sale of trees, to be removed in a definite time, would be construed as not intended to convey any interest in the land.” And in Claflin v. Carpenter,! Judge Wilde said: “A contract for sale of standing timber, to be cut and severed frém the freehold by the vendee, does not convey to him any interest in land within the meaning of the statute. Such a contract is to be con- strued as passing an interest in trees when they are severed from the freehold, and not any interest in the land.” 2 In Smith v. Bryan, the court held a sale of stand- ing timber to be one of goods only, within the contem- plation of the parties, whether to be nevered by the vendor or vendee. In a case where growing timber was sold on con- dition that it was to be removed on thirty days’ notice from the owner of the land, the interest of the buyer was held to be a chattel that would pass to his admin- istrator* It will be noticed that this case squarely supports Marshall v. Green.® But the weight of American authority is at variance with Marshall v. Green, and supports the proposition that a sale of growing trees, or other fructus naturales, 1 4 Met. 580. 2 Nettleton v. Sikes, 8 Met. 84; Giles v. Simonds, 15 Gray, 441; Drake v. Wells, 11 Allen, 141; Poor v. Oakman, 104 Mass. 309 ; Erskine v. Plummer, 7 Me. 447; Cutler v. Pope, 13 Me. 377. 35 Md. 141; Cain v. McGuire, 13 B, Mon. 340; Bryassee v. Reese, 4 Mete. (Ky.) 372. 4 McClintock’s App., 71 Penn. 366. 5 10C. P. Div. 40; Cain v. McGuire, 13 B. Mon. 340; Bryassee v. Reese, 4 Mete. (Ky.) 372. 74 FARM LAW. whether present or executory, is a sale of an interest in land, never valid unless made by a written agreement or deed. If the sale is oral, it is then a mere revocable license to enter upon the land. The leading case upon this point is Green v. Armstrong.t But where under an oral contract the timber has been severed before revocation of the license by the vendor, the buyer obtains title to the severed timber.? An agreement to sell growing trees, with a right to cut and remove them at a future time, fixed or indefinite, must be in writing, according to the New Hampshire authorities.® In Kansas, it has been held that a parol agreement to sell growing grass was void under the statute (under the section identical with the English section relating to the sale of interests in land), on the ground that the subject of sale was an interest in land.4 An agreement to sell a certain number of cords of wood yet standing in the tree is within the statute, as a sale of an interest in land, and requires a deed or writing® Chief Justice Thompson, in a Pennsylvania case,® said: “We regard a contract for the sale of standing timber on a tract of land, to be taken off at discretion as to time, as an interest in land, and within 1 1 Denio (N. Y.), 550; Daniels v. Bailey, 43 Wis. 566; O’Donnell v. Brehen, 36 N. J. L. 257; Buck v. Pickwell, 27 Vt. 158. 2 Kilmore v. Howtett, 48 N. Y. 569; Boyce v. Washburn, 4 Hun (N. ¥.), 792. 8 Kingsley v, Holbrook, 45 N. H. 313; Howe v. Batchelder, 49 N. H. 204. 4 Powers v. Clarkson, 17 Kan. 218. 5 Knox v. Haralson, 2:Tenn. Ch. 232. ® Pattison’s App., 61 Penn. 294, THE SALE OF CROPS AND TIMBER. 75 the Statute of Frauds, the transmission of which must be in writing.” The American doctrine with regard to fructus indus- triales, or cultivated products, nowhere differs from the English, as previously stated. An oral sale of growing cabbages is a sale of goods within the seventeenth section of the statute, or within the American section identical with it; and if the buyer takes away part of the cabbages the statute is complied with.1 The same may be said of a growing crop of rye, and of all growing crops.® A distinction has been made between grass ready to cut and grass which needs to remain on the land to ripen. In the former case the crop may be considered goods, and within the seventeenth or equivalent section ; in the latter, the grass is considered to be a part of the land.4 It has been held that a sale of peaches unripe on. the trees, to be gathered by the purchaser when ready to pick, was a sale of goods and not of an interest in land Mr. Benjamin thus sums up the law on the subject perfectly, and what he declares is good American law everywhere, except as to sales of growing timber :® 1 Ross v. Welch, 11 Gray, 235. 2 Westbrook v. Eager, 16 N. J. L. 81. 8 Green v. Armstrong, 1 Denio (N. Y.), 554; Bull ». Griswold, 19 Ill. 631; Graff . Fitch, 58 Ill. 373; Davis v. McFarlane, 37 Cal. 634. # Cutler v. Pope, 13 Me. 377. 5 Purner v. Piercy, 40 Md. 212. 6 Benjamin on Sales (4th Am. ed.), sect. 126. 76 FARM LAW. “Growing crops, if fructus industriales, are chattels, and an agreement for the sale of them, whether ma- ture or immature, whether the property in them is transferred before or after severance, is not an agree- ment for the sale of any interest in land, and is not governed by the fourth section of the Statute of Frauds. “Growing crops, if fructus naturales, are part of the soil before severance, and an agreement, therefore, vest- ing an interest in them in the purchaser before sever- ance is governed by the fourth section;? but if the interest is not to be vested till they are converted into chattels by severance, then the agreement is an execu- tory agreement for the sale of goods, wares, and mer- chandise, governed by the seventeenth and not by the fourth section of the Statute of Frauds.”3 Where a farm is leased to a tenant who agrees to take the growing crops according to a valuation, the whole is a contract for an interest in land, and the crops cannot be regarded as something separate and in the nature of goods* As Judge Littledale said in Mayfield v. Wadsley,> “the crops are considered part of the land.” 1 Kingsley v. Holbrook, 45 N. H. 818, 318; Buck v. Pickwell, 27 Vt. 157; Bryant v. Crosby, 40 Me. 9; Sherry v. Picken, 10 Ind. 375; Bull v. Griswold, 19 Ill. 631; Ross v. Welch, 11 Gray, 235. 2 Lord Coleridge, C. J., in Marshall v. Green, 1 C. P. Div. 88-40; Slocum v. Seymour, 7 Vroom, 138. 3 See Benjamin on Sales (4th Am. ed.), p. 147, note. 4 Earl of Falmouth v. Thomas, 1 Cr. & M. 89. 53 3B. & C. 306. THE SALE OF CROPS AND TIMBER. TT Sect. 2. The Right of a Tenant to Crops. A tenant whose estate is of uncertain duration, and is suddenly concluded by an act of God or that of the lessor, is entitled to receive the profits out of the crops he has planted, but which had not been harvested when his estate terminated. Tenants for life? and at will® have this right, but not tenants for years or at sufferance.* The term used to denote this privilege is called em- blements, and the crops included are such products of the soil as are the growth of annual planting and culture. , The different cereals and vegetables would be of this class, while clover, grasses, or the fruits of the trees the tenant would not be entitled to, for he could not expect to reap such benefit in a year, and he is aware of that fact when he plants them. A tenant who plants a crop which he knows cannot mature until after the termination of his tenancy will lose the same.® 1 Kittredge v. Woods, 3 N. H. 503, 505; Brown v. Thurston, 56 Me. 126; Rising v. Stannard, 17 Mass. 287; Debow v. Titus, 10 N. J. L. 128; Stewart v. Doughty, 9 Johns. 108, 112; Bennett v. Bennett, 34 Ala. 58; Reilly v. Ringland, 39 Iowa, 106. 2 Chesley v. Welch, 37 Me. 106 ; Kittredge v. Woods, 3 N. H. 508 ; Whitmarsh v. Cutting, 10 Johns. 368; Debow v. Colfax, 10 N. J. L. 128. 8 Sherburne v. Jones, 20 Me. 70; Chandler v. Thurston, 10 Pick. 205; Davis v. Brocklebank, 9 N. H. 73 ; Stewart v. Doughty, 9 Johns. 108; Harris v. Frink, 49 N. Y. 24. 4 Doe v. Turner, 7 M. & W. 226. 5 Reiff v. Reiff, 64 Penn. St. 134. 6 Kittredge v. Woods, 3 N. H. 503; Whitmarsh v. Cutting, 10 78 FARM LAW. Where there is a parol agreement for the sale of lands, and the would-be purchaser with the consent of the seller enters into the possession of the land and plants crops, if the seller repudiates the contract and ejects the intended buyer from the land, the latter can claim the crops.! But the tenant is not entitled to the crops when his interest is to terminate at a fixed time, or if he by his own act has brought his lease to an end, as where he abandons the premises, or, by failure to perform a con- dition, voluntarily destroys his estate;? 7. ¢., if a woman, who is a tenant during her widowhood, should marry.? When the crops are ripe for harvest the executors of the tenants in fee are entitled to the same in preference to the heirs.* The tenant or his representatives after the determi- nation of the tenancy have a right to enter upon the land and harvest the crops. The extent of this entry may be stated to be this: He may enter upon the land, cultivate the crop if a growing one, cut and harvest it when fit, and if interfered with in the reasonable exer- Johns. 860; Chesley v. Welch, 37 Me. 106 ; Debow v. Colfax, 5 Halst. 128; Harris v. Carson, 7 Leigh, 632; Holding v. Pigott, 7 Bing. 465. 1 Harris v. Frink, 49 N. Y. 24; Chandler v. Thurston, 10 Pick. 205. Oland’s Case, 5 Co. 116. Where a tenant for life forfeits his es- tate by committing waste. 2 Bla. Comm. 123, 145; Debow v. Colfax, 10 N. J. L. 128; Stewart v. Doughty, 9 Johns. 108, 112. 8 Hawkins v. Skeggs, 10 Humph. 31; Debow ». Colfax, 5 Halst. a Kingsley v. Holbrook, 45 N. H. 313; Penhallow v. Dwight, 7 Mass. 34. In Bradner v. Faulkner, 34 N. Y. 349, they passed with the land under a devise. See McCormick v. McCormick, 40 Miss. 763. Upon the death of the tenant in fee, crops pass to the heir. THE SALE OF CROPS AND TIMBER. 79 cise of these privileges by the landlord or reversioner, or if the crop be injured by him, he may have an action for the same. Sect. 3. Growing Crops may be mortgaged. A sale of the land, without any reservation made in the deed of conveyance, carries with it all the crops, and the purchaser of the land thereby becomes the owner of the crops. A reservation of the crops grow- ing at the time the land is sold should be in writing; and in Arkansas and several States this must be com- plied with, while in Indiana, Pennsylvania, Ohio, and New York a verbal reservation has been held good as between the parties to the sale. And a growing crop has such an existence as to be the subject-matter of a mortgage separate and apart from the land,? passing an interest to vest in possession, either immediately or at some future time. But ordinarily a mortgage cannot operate upon crops which are not in existence, or not 1 Forsythe v. Price, 8 Watts, 282; Humphries v. Humphries, 8 Ired. 362. 2 Adams v. Tanner, 5 Ala. 740. In Van Hoozer v. Cory, 34 Barb. 10, the grant was of the cheese expected to be made from the cows of the grantor, ‘‘and the products expected to be raised upon the prem- ises demised to the grantor,” and this was held to be a valid grant. Crocker, J., said that ‘‘ property must have an actual or potential existence in order to be the subject of a sale; this doctrine is so well settled as to become elementary ; but a thing may be the subject of a sale, although not in actual existence, if it has a potential or possible existence, as the product or increase of that which is in existence ; and the right to it when it shall come into existence is a present vested right.” Cook v. Steel, 42 Tex. 53. 80 FARM LAW. growing,! for “a man cannot grant or charge that which he hath not.”2 Still, if future-acquired property be the product of present property in the mortgagor, as fruit upon the trees, the product of a dairy or a farm, or anything of that character which has a potential exist- ence, the mortgage will take effect upon the property as soon as it comes into existence, and will be perfectly binding? When a crop is growing upon the land of one person, but which belongs to another, the owner may mortgage* 1 In the Bank of Lansingburgh v. Crary, 1 Barb. 551, Judge Paige said: ‘I strongly incline to the opinion that a chattel mortgage can only operate upon property in actual existence at the time of its execu- tion; that it cannot be given on the future products of real estate ; and that if given one day or one week before the product of the land comes into existence, it is as void as if the chattel mortgage had been given on a crop of grass or grain one, two, or three years previous to its production.” Milliman v. Neher, 20 Barb. 37; Taylor v. Fos- ter, 22 Ohio St. 255. In Hutchinson v. Ford, 9 Bush (Ky.), 318, the court said: ‘‘ A mortgage of a crop to be raised on a farm during a certain term passes no title if the crop was not sown when the mort- gage was executed, and the mortgagee has no claim against the purchaser of the crop for its value.” Jones v. Richardson, 10 Met. 481 ; Codman v. Freeman, 3 Cush. 306. 2 Perkins, tit. Grants, sect. 65. 8 When a mortgage is executed upon an unplanted crop a lien attaches in equity as soon as the subject of the mortgage comes into existence. Appleton v. Moore, 30 Ark. 57; Eastport, &c. R. R. Co. v. Emerson, 67 Me. 391; Butt v. Ellett, 19 Wall. 544; Everman v. Robb, 52 Miss. 658; Pennock v. Coe, 23 How. 117; Ellett v. Butt, 1 Woods, 214, 218. In Moody v. Wright, 13 Met. 17, the court of Massachusetts came to an opposite conclusion. In California the law is different, for the lessee of land, in possession of the same, may, before he has planted, execute a valid mortgage on the crop to be raised by him the coming cropping season. Arques v. Watson, 51 Cal. 625. See Robinson v. Ezzell, 72 N. C. 231, where a mortgage of ‘‘ one's entire crop of corn, whether growing or unplanted,” was held valid, # Jencks v. Smith, 1 N. Y. (1 Comst.) 90. THE SALE OF CROPS AND TIMBER. 81 it, as well as a tenant who has given a mortgage to his landlord to secure the latter for rent of a farm. The purchaser of a mortgaged crop takes it subject to the mortgage, although he has no actual notice of the mortgage at the time of his purchase, if it has been duly recorded. Thus, where ten acres of wheat had been mortgaged, and the mortgagor, without the con- sent of the mortgagee, cut the wheat, and in the night- time secretly thrashed and hauled the grain to the market, and sold it to an innocent purchaser, it was held that the purchaser was liable to pay to the mort- gagee the value of the wheat, notwithstanding he had paid the full value of the wheat, and had no knowledge that the wheat had ever been mortgaged? In Cudworth v. Scott? a mortgage was given in Jan- uary, 1856, of “all the hay and grain that grows on the farm on which I now live the present year,” and it was held to be good for the hay and winter rye which were in existence at the time of the execution of the mort- gage, but not for the grain crop of the spring of 1859. Sect. 4. Upon the Sale of a Growing Crop, is Possession or Delivery essential ? The general rule is, that while as between vendor and vendee, and as against strangers and trespassers, the title to personal property passes without delivery, yet as against subsequent purchasers and attaching 1 Conderman v. Smith, 41 Barb. 404. 2 Rider v, Edgar, 54 Cal. 127 ; Hackleman v. Goodman, 75 Ind. 202. 3 41 N. H. 456. 82 FARM LAW. creditors an actual or constructive delivery is essential to the validity of a sale.! As to what constitutes a sufficient delivery of grow- ing crops as to third persons, there is some apparent conflict in the authorities. In Lamson v. Patch? there was a sale of growing grass, and the question was whether the vendee or a third person was entitled to the same. Judge Hoar said: “The question upon which this case turns, there- fore, is, whether plucking a handful of growing grass and delivering it to a purchaser in the field, as in part execution of a contract of sale of the whole crop, is a good symbolical delivery of the whole. We are of the opinion that it is not. The time when the act was done was the first day of June. The grass was but six inches high; it was therefore not fit to cut, and but partially grown.” It was stated by Judge Metcalf in Stearns v. Washburn ® that, “until severed, the grass was not personalty, nor goods or chattels, but was part of the realty.’* There are, however, cases which hold 1 Vining v. Gilbreth, 39 Me. 496; Thorndike v. Bath, 114 Mass. 116; Haak v. Lindermann, 64 Penn. St. 499; Ticknor v. McClelland, 84 Ill. 471; Morgan v. Taylor, 32 Tex. 363. 25 Allen, 586. 8 7 Gray, 188. 4 Searles v. Ogden, 15 Reporter, 562; Raventas v. Green, 57 Cal. 254; Stowe v. Peacock, 35 Me. 385. In Brantom v. Griffits, 2 C. P. Div. 212, the court said: ‘Now it is impossible that there can be present delivery of growing crops. In a popular and practical sense, growing crops are no more capable of removal than the land itself.” “‘I do not know that corn, growing, is susceptible of delivery in any other way than by putting the donee into possession of the soil.” Per Chief Justice Kent, in Noble v. Smith, 2 Johns. 52, 56. Smith v. Champney, 50 Iowa, 174. THE SALE OF CROPS AND TIMBER. 83 that the possession is in the vendee until he is prepared to harvest the crops, and until then he is not required to take manual possession of them! Instead of de- claring that the possession is in the vendee, it would be better to say that the possession is in the vendor in trust for the vendee, and that the rule that there must be a change of possession does not extend to property which is not susceptible of delivery as a growing crop.? Sect. 5. Levy of Process upon Growing Crops. Crops raised annually by labor and cultivation, as corn, wheat, potatoes, &c., whether growing or standing in the field ready to be harvested, are personal property, and as such are liable to be seized on execution. By statutory enactments in the several States, distress, at- tachment, and execution may be made or levied upon them. No seizure can be made upon the annual produce of the earth, as grass growing, or fruit not gathered, where the debtor is the owner of the land.4 1 Ticknor v. McClelland, 84 Ill. 471; Williamson v. Steele, 8 Lea (Tenn.), 527. 2 Stowe v. Peacock, 35 Me. 385; Morton v. Ragan, 5 Bush, 334; Robbins v. Oldham, 1 Duv. 28; Cummings v. Griggs, 2 Duv. 87. Section 1923 of the Code of Iowa provides, that ‘no sale of personal property, where the vendor retains actual possession, is valid against existing creditors or subsequent purchasers without notice, unless a written instrument conveying the same is executed and filed for record.” 3 Penhallow v. Dwight, 7 Mass. 34; McKenzie v. Lamprey, 31 Ala. 526; Stewart v. Doughty, 9 Johns. 108; Patapsca v. Magee, 86 N. C. 350; Shepard v. Philbrick, 2 Denio, 175; Shannon v. Jones, 12 Ired. 206 ; Coombs v. Jordan, 3 Bland, 312. 4 State v. Gemmill, 1 Houst. 9. 84 FARM LAW. If the debtor is merely a tenant, the fruit or grow- ing grass, and even trees not severed, may become per- sonal property, as where the owner sells the trees and grass, or sells the land and reserves to himself the trees and grass.1 Where they are mortgaged, there can be no severance from the soil until after forfeiture of the es- tate, when they belong to the mortgagee, or are liable to be taken on execution against him. But the tenant who is to have half of the crops or profits, has no such per- fected interest until his part of the contract is performed . as will give his creditors a right to seize his share.? Sect. 6. Under Foreclosure of Mortgage of the Land, Crops go to Purchaser. A sale, under a deed of foreclosure, of land upon which there are growing crops entitles the purchaser 1 Bricker v. Hughes, 4 Ind. 146; Bloom v. Welsh, 27 N. J. 117; Green v. Armstrong, 1 Denio, 550; Evans v. Roberts, 5 B. & C. 829. 2 Smith v. Much, 26 Vt. 233. Under the laws of Kentucky a crop cannot be levied upon while growing, until after the 1st of October in each year; in Alabama, until gathered. It cannot be seized in Ten- nessee before the 15th of November, except for rent, where the tenant has absconded. In Michigan it may be, but no sale thereof until the same shall be ripe or fit to be harvested, with a lien reserved to the creditor thirty days after it is ripe or severed. By the statutes of Maine and Vermont crops are exempt from seizure under distress or attachment until harvested; while in West Virginia and Virginia ‘‘no growing crop of any kind can be seized, except Indian corn, which may be taken at any time after the 15th of October in any year.” In. other States an unripe crop is not subject to seizure. Heard v. Fair- banks, 5 Met. 111; Thompson v. Craigmyle, 4 B. Mon. 392; Pitts v. Hendrix, 6 Ga. 452; Cheshire Nat. Bk. v. Jewett, 119 Mass. 241; Shannon v. Jones, 12 Ired. 206; Campbell v. Johnson, 11 Mass. 184. It has been held that a growing crop of grass cannot be attached. Norris v. Watson, 22 N. H. 364. THE SALE OF CROPS AND TIMBER. 85 to take such crops; but where the crops are sowed or planted after the execution of the mortgage, the doc- trine has been denied in some States.! In England, the mortgagee is entitled to immediate possession after the execution of the mortgage. If he does not enter, the mortgagor is not obliged to account to him for the rents and profits, and the mortgagee is not entitled to the growing crops which have been re- moved by the mortgagor between the date of the mort- gage and the recovery of possession. But when the mortgagee takes possession he has a right to all the crops on the premises. Szot. 7. Successful Party in Ejectment entitled to Growing Crops. The recovery of land in ejectment entitles the suc- cessful party to the crops growing on and constituting a part of it.2 After judgment is obtained, the tenant has no right to harvest the crops, and should he at- tempt it, the landlord can recover their value in an action for mesne profits? So if a tenant sows a crop during the pendency of ejectment against his landlord, and with notice of the pendency of the suit, he has no right to enter, after having surrendered the premises, 1 Ruggles v. First Nat. Bk., 43 Mich. 192; Bank of United States v. Voorhees, 1 McLean, 221; Gray v. Brignardello, 1 Wall. 634; Lane v. King, 8 Wend. 584. 2 Ray v. Gardner, 82 N. C. 454; Lane v. King, 8 Wend. (N. Y.) 584; Rowell v. Klein, 44 Ind. 290. 3 Hodgson v. Gascoine, 5 B. & A. 88; Upton v. Wetherwick, 3 Bing. 11. 86 FARM LAW. to remove the crops sown. And if a defendant in eject- ment, after execution of a writ of possession, enters, cuts and removes a crop, the plaintiff in ejectment may recover its value from him, in trover.! 1 McLean v. Bovee, 24 Wis. 295; Alters v. Hickler, 56 Ill. 275. LIABILITY FOR DAMAGE CAUSED BY FIRE. 87 CHAPTER VII. LIABILITY FOR DAMAGE CAUSED BY FIRE. Scr. 1. May clear Land for Cultivation by Fire. 2. Liability for Damage by Negligence. 3. State Statutes on the Subject. 4, Railroad Companies liable, when. Sect. 1. May clear Land for Cultivation by Fire, THE owner or occupant of land has a right to set fire to stubble, wood, timber, grass, or other material, and to clear his land for cultivation, if he uses ordinary care to prevent it from spreading to his neighbor’s land. The gist of his liability is some degree of carelessness, either in the time of setting the fire, the manner of doing so, or in watching it afterwards! The rule is well stated by Judge Dickerson? in the following words: “Every person has a right to kindle fire on his own land for the purposes of husbandry, if he does it at a proper time and in a suitable manner, and uses reasonable care and diligence to prevent it spreading and doing injury to the property of others.” 1 Higgins v. Dewey, 107 Mass. 494; Bachelder v. Heagan, 18 Me. 82; Fraser v. Tupper, 29 Vt. 409; Hinds v. Barton, 25 N. Y. 544; Miller v. Martin, 16 Mo. 508; Fahn v. Reichart, 8 Wis. 255; Dewey v. Leonard, 14 Minn. 153. 2 Hewey v. Nurse, 54 Me. 256. 88 FARM LAW. Sror. 2. Liability for Damage by Negligence. The time may be suitable and manner prudent, and yet, if the farmer is guilty of negligence in taking care of a fire on his own land and it spreads and injures the property of another in consequence of such negligence, he is liable in damages for the injury done. The gist of the action is negligence, and if that exists in either of these particulars, and injury is done in consequence thereof, the liability attaches; and it is immaterial whether the proof establishes gross negligence or only a want of ordinary care on the part of the defendant. If a hunter or traveller negligently starts a fire upon another’s land, he will be responsible for all damage done. And where a person, intending to burn brush on his own land, set fire to it within six feet of the plain- tiffs land, which was also covered with brush, he was held answerable for his negligence.} Sect. 3. State Statutes on the Subject. The legislatures of some of the States have passed laws to guard against the great danger of building fires on prairies, in dry wood and marshes. In Connecticut,? “any person who shall set fire on any land, that shall run upon the land of any other person, shall pay to the owner all damage done by such fire.” In Missouri and Illinois, all persons are absolutely prohibited from firing woods or anything upon the 1 Higgins v. Dewey, 107 Mass. 494. 2 Rev. Stat. Conn., chap. 84, sect. 365. LIABILITY FOR DAMAGE CAUSED BY FIRE. 89 ground, except between March and November, and then only for the purpose of protecting themselves from prairie fires. Under these statutes, where dam- age occurs from the fire spreading, the burden of proof is upon him who set the fire to show that he did so to protect himself from prairie fires, and that he used every reasonable precaution to prevent injury to others. By a statute in North Carolina, a person must give his neighbor notice in writing of his intention to set fire to woods on his own land. This notice may be waived by the adjoining owner. The statute only ap- plies to woods growing on the soil,’and not to heaps or rubbish collected upon the land. In Iowa, “if any person wilfully, or without using proper caution, sets fire to and burns, or causes to be burned, any prairie or timber land, by which the property of another is de- stroyed, he shall be liable to an action to the party injured for all damages which he, she, or they may have sustained in consequence of such fire.” By the rule in California, treble damages are awarded against him who negligently sets fire to his own woods, or neg- ligently suffers any fire to extend beyond his own land, if his neighbor thereby suffers loss. In some of the States there are provisions making the firing of woods, prairies, and lands, or negligently allowing fires to spread from a person’s own lands upon those of his neighbor, a misdemeanor or crime, and imposing punishment by fine or imprisonment, or both. Thus, in New Hampshire,? “if any person, for a 1 Laws of Iowa, p. 3, sect. 1. 2 Gen. Laws of N. H., chap. 280, sects. 5, 6. 90 FARM LAW. lawful purpose, kindles a fire upon his own land, or on land which he occupies or is laboring upon, at an unsuitable time or in a careless or imprudent manner, and thereby injures and destroys the property of others, he shall be fined not exceeding one thousand dollars. If any person, with intent to injure another, kindles or causes to be kindled a fire on his own or another’s land, and thereby the property of any other person is injured or destroyed, he shall be fined not exceeding two thousand dollars, or imprisoned not exceeding three years.” Sect. 4. Ratlroad Companies liable, when. Railroad companies were formerly not liable for fires caused by their locomotives, without proof of some neg- ligence on the part of the company; but by statutory enactments in some of the States, such as Maine, New Hampshire, Massachusetts, and Iowa, railroad compa- nies are absolutely liable for injuries to the buildings or personal property of farmers along their route, caused by fire from their engines irrespective of their negligence. Under these statutes, a railroad company which has leased its line to another company remains responsible for any damage by fire, caused by the latter. In Vermont, New Jersey, Maryland, and Kansas, by statute, the fact that a fire was caused by a railroad is 1 Pierce v. Concord R. R., 51 N. H. 590; Davis v. Providence, &. R. R. Co., 121 Mass. 184; Stearns v. Atlantic, &. R. R. Co., 46 Me. 96. LIABILITY FOR DAMAGE CAUSED BY FIRE. 91 prima facie evidence of negligence; while in Illinois! a railroad company is guilty of negligence, if it fails to keep its right of way free from combustible rubbish. It is not negligence, such as would bar an action for recovery against a railroad company, for a farmer to leave the grass or stubble standing on his pasture or grain field, along the side of which runs a railroad track. 1 Pittsburgh, &c. R. R. Co. v. Campbell, 86 Ill. 443. 92 FARM LAW. CHAPTER VIII. GENERAL PRINCIPLES OF THE LAW AS TO REAL PROPERTY. Secr. 1. What the Term ‘‘ Land” embraces. 2. Who may own Real Estate. 8. Mines and Minerals, 4, As to Fixtures. 5. Pews. 6. Trespass on Real Estate. 7. A Fee Simple. 8. Estates Tail. 9. An Estate for Life. 10. Dower. 11. An Estate by Curtesy. 12. Estate for Years. 13. An Estate at Will. 14. Joint Tenancy. 15. Tenancy in Common. Sect. 1. What the Term “Land” embraces. REAL property, or real estate, embraces not only land, but all improvements of a permanent character placed upon it. The term “land” includes not only the ground or soil, but everything attached to it, above or below, whether by the course of nature, as trees, herbage, stones, mines, and water, or by the hand of man, as houses. LAW AS TO REAL PROPERTY. 93 Sect. 2. Who may own Real Estate. Any one has a right to own real estate, even if he is an alien; even an unborn infant, when the mother is quick with child, may have a deed of conveyance made to it. Sect. 3. Mines and Minerals. There may be distinct ownerships in the minerals contained in the same parcel of land. One farmer may own the iron, another the limestone. So one may own one vein of coal, and another a separate vein, if distinguishable, lying beneath or by the side of the other, within the same parcel of land. And as inci- dent to the ownership of a mine, where another owns the surface, is the duty of keeping the entrance to it so guarded as not to endanger the safety of the animals lawfully upon the surface. Sect. 4. As to Fixtures, In general, whatever the owner of the farm fastens to the ground or to a building, or uses constantly with it as an appurtenance to it, is a fixture, and he sells it when he sells the farm. But whatever a hirer buys or makes to use with the farm, and fastens to the ground or building, if he fastens it in such a way that he can remove it, and leave the land or building in as good order and condition as it was before, he may remove and take away. Among the instances of agricultural 1 Green v, Putnam, 8 Cush. 21; Adam v. Briggs, 7 Cush. 361. 94 FARM LAW. fixtures are fences and standing timber. If the owner of a farm sell the standing timber, and, subsequently, sells the farm to a bona fide purchaser, who has no no- tice of the sale of the trees, such purchaser is entitled to them. The first party must look to the seller for damages. In a New Hampshire case,! a farmer sold his farm with the buildings, and the question arose whether the purchaser was entitled by the deed of conveyance to a large stone which the farmer, previous to selling his es- tate, had procured and brought in the door-yard for the purpose of being fitted and used, at some future time, for a doorstep. The stone remained where it was placed till after the conveyance to the purchaser, when it was sold, by the farmer, to a third person. In the words of Judge Wood, “The term ‘fixture’ may embrace other things than such as are denoted by the word in its strict etymological sense; and whatever has been placed upon the soil, or upon a building, for the pur- pose of being used as a part of the realty, may properly fall under the denomination of a fixture, although not so attached to it that it cannot be severed without dis- turbing or breaking the soil. But a chattel that is fit to be annexed to the freehold, and has been. brought upon it with an intention on the part of the possessor to annex it, does not become a fixture, unless actually annexed or placed in the position in which it is in- tended to be used, and in which it is adapted for use.” If a farmer erect buildings upon the land of another, voluntarily and without any contract, they become a 1 Woodman »v, Pease, 17 N. H. 282. LAW AS TO REAL PROPERTY. 95 part of the land, and he has no right to remove them. But if he erects a building on the land of another, with his consent, and upon the agreement and understand- ing that he should have the privilege of removing it, it remains the farmer’s property.! The law pertaining to fixtures is well stated by Chief Justice Shaw, in a Massachusetts case? as follows: “Doors, windows, and shutters, capable of being re- moved without the slightest damage to a house, and even though, at the time of a conveyance, an attach- ment, or a mortgage, actually detached, would be deemed, we suppose, a part of the house, and pass with it. And so, we presume, mirrors, wardrobes, and other heavy articles of furniture, though fastened to the walls by screws with considerable firmness, must be regarded as chattels. The difficulty is somewhat in- creased when the question arises in respect to a mill or manufactory, where the parts are so often arranged and adapted, so ingeniously combined, as to be occasionally connected or disengaged as the objects to be accom- plished may require. In general terms, we think it may be said that when a building is erected as a mill, and the water-works or steam-works, which are relied upon to move the mill, are erected at the same time, and the works to be driven by it are essential parts of the mill, adapted to be used in it, though not at the time of the conveyance, attachment, or mortgage at- tached to the mill, they are yet parts of it, and pass with it by conveyance, mortgage, or attachment.” 1 Rogers v. Woodbury, 15 Pick. 156; Dame v. Dame, 38 N. H. 429. 2 Winslow v. Merchants’ Ins. Co., 4 Met. 306, 314. 96 FARM LAW. Sect. 5. Pews. In the absence of any statute, pews in a church are held to be real estate. Such is the law in Maine and Connecticut; while, in New Hampshire, Massachusetts, and New York, they are held to be personal property. In Indiana, they belong to the church. The property in a pew, whether the owner be a member of the soci- ety or not, is not absolute, but qualified and usufruc- tory, — an exclusive right to occupy a certain part of the meeting-house for the purpose of attending public worship, and no other,—and is necessarily subject to the right of the proper church authorities to remove, take down, or repair the pew, although it is thereby destroyed.1 Sect. 6. Trespass on Real Estate. Every person who enters upon the premises of a far- mer, without his express or implied assent, commits a trespass, whether the land be enclosed or not, and al- though no actual injury be done. The following are illustrations of this rule, viz.: where the farmer’s stal- lion injured his neighbor’s mare, by biting and kicking her through the fence separating the farmer’s land from his neighbor’s, the farmer was held liable in trespass apart from a question of negligence on his part ; throw- ing stones, rubbish, or materials of any kind upon the premises; suffering a spout to discharge water upon neighboring premises; permitting filth to ooze through 1 Daniel v. Wood, 1 Pick. 102. LAW AS TO REAL PROPERTY. 97 a boundary wall into another man’s land ; and, where a tree stood directly upon the line between adjoining owners, so that the line passed through it, it was held common property, and trespass would lie if one of them cut and destroyed it, without the consent of the other. The fact that a person crosses the land of a farmer for twenty years does not give him a right to continue the practice. The crossing must have been adversely to the farmer, contrary to his wishes, or at least with- out his permission, express or implied, and under a claim of a legal right so to do, whether the farmer is willing or not. If, therefore, the person crossing does so with the permission of the farmer, and not under any claim of right, it is wholly immaterial how long the custom has continued. Even fifty years would not give any right to continue to pass, after he had been forbidden to do so. A notice put up forbidding it would make the person a trespasser. By statute in Massachusetts! “whoever between the first day of April and the first day of December wilfully enters on or passes over or remains on any orchard, garden, mowing land, or other improved or enclosed land of another, after being forbidden by the owner or occu- pant thereof, or by the authorized agent of such owner or occupant, either directly, or by notice posted thereon, shall be punished by a fine not exceeding twenty dol- lars.” A similar law exists in Maine. By the above provision, the wilful trespassing on such lands is made a crime; and any constable or other officer may arrest the offender on the spot, and take him before some 1 Pub. Stat. Mass., chap. 203, sect. 99. 7 98 FARM LAW. proper tribunal for trial and sentence. But at all other seasons of the year, or as to other kinds of lands, such a trespass is only a civil trespass, not a crime, and the only legal remedy is an action for the damage com- mitted. If a person trespasses upon the premises of the far- mer, and is ordered off by the latter, but refuses to go, the farmer would be justified in using force to compel him to depart, if not unreasonably violent. For exam- ple: A. goes into B.’s house or barn, or on his land, and persists in remaining there, although B. orders him away. 3B. may lay hold of him, may summon help, and, with as much help as he may need, seize him, and, if necessary, bind him hand and foot, carry him bodily off his premises, and then unbind him, on this condition, however, that he uses no more violence than is requisite to remove him, and that he avoids such measures as would do serious or permanent harm or endanger life or limb. But while B. does only what is needed to remove A., and does this with sufficient care, if A., by some accident, is injured, B. is not re- sponsible, for it is.A.’s own fault. But the farmer would not be justified in flogging trespassing boys or assaulting trespassing men unless they first resist law- ful ejectment.! Nor would the farmer be exonerated by shooting or poisoning an animal merely because it is trespassing on his grounds. Thus, where hens of a neighbor ran into a farmer’s grass and made nests therein to a certain extent, and the farmer requested his neighbor to shut them up, and threatened to kill 1 State v. Woodward, 50 N. H. 527. LAW AS TO REAL PROPERTY. 99 them if they were not, and the neighbor neglected and declined to do so, whereupon the farmer spread a quan- tity of Indian meal mixed with arsenic on his own land, which had the desired effect, for this sport he was compelled to pay their value! The right to fish and shoot on a farmer’s land is misunderstood by many persons; some having the idea that they have a right to go upon another’s land, as they please, for this purpose,— which is far from the law. It is true, that, if the stream is navigable, that is, if the tide ebbs and flows, or if it be large enough for commerce, as our great inland rivers, the public have a right to boat up and down it, and to fish from their boats, but not to go on shore for that purpose. In all ordinary streams and ponds the right to fish belongs solely to the person owning the adjoining land. If a farmer has an estate on both sides of a fresh-water stream, the sole right of fishing in the stream is vested in him. In the words of Chief Justice Shaw,? “Tn all waters not navigable in the common-law sense of the term, that is, in all waters above the flow of the tide, the right of fishing is in the owner of the soil upon which it is carried on, and in such rivers the right of the soil is in the owner of the land bounding upon it. If the same person owns the land on both sides, the property in the soil is wholly in him, subject to certain duties to the public; and if different persons own the land on opposite sides, each is proprietor of 1 Clark v. Keliher, 107 Mass. 406; Johnson v. Patterson, 14 Conn. 1. 2 McFarlin v. Essex Co., 10 Cush. 304. 100 FARM LAW. the soil under the water to the middle or thread of the river.” This is recognized in many cases as the com- mon right of riparian proprietors, subject in Massa- chusetts to regulation, for the common benefit, by the legislature. By statute in Massachusetts,! “the ripa- rian proprietors of any pond the area of which is not more than twenty acres, and the proprietors of any pond or parts of a pond created by artificial flowing, shall have exclusive control of the fisheries therein existing. The fishery of any pond the area of which is more than twenty acres shall be public (unless leased by the commissioners), and all persons shall, for the purpose of fishing, be allowed a reasonable means of access to the same, without rendering them- selves liable to an action for trespass.” As to salt-water fishing and the right to clams or other shell-fish, an interesting case? arose in Massachu- setts. The plaintiffs were proprietors of land bordering on the seashore, and by the laws of Maine, New Hamp- shire, and Massachusetts were entitled to the flats ly- ing between high and low water mark, provided they did not extend more than a hundred rods from the upland. The defendants went, in their boats, upon the flats at low-water mark, within the above space; dug five bushels of clams, put them into their boat, and carried them away. The court were of opinion that the action could not be maintained. In the words of Chief Justice Shaw, “The rule, established by usage and judicial decision, has been, that although the ordi- 1 Pub. Stat. Mass., chap. 91, sects. 10-12. 2 Weston v. Sampson, 8 Cush. 347. LAW AS TO REAL PROPERTY. 101 nance [1641] transfers the fee to the riparian owner, yet until it is so used, built upon, or occupied by the owner, as to exclude boats and vessels, the right of the public to use it is not taken away; but that whilst open to the natural ebb and flow of the tide, the public may use it, and by so doing commit no trespass, and do not disseize the owner. Where flats are left wholly open to the natural ebb and flow of the tide, unoccu- pied and unenclosed by the upland proprietor, the right of fishing on the part of the public is not excluded; and the law in this respect makes no difference between shell-fish and swimming or floating fish.” But although the right of fishery in navigable rivers and arms of the sea is presumptively free, yet this right may become exclusive in the owner of the adjacent soil by legislative grant or prescription, subject to the supe- rior public right of navigation So the right of fishery incident to the ownership of the soil of a river or other stream may be granted to another by the owner thereof, while retaining the soil and freehold of the premises, either to be enjoyed in common with himself, or to be exclusively enjoyed by such grantee. The regulation of fisheries within the jurisdiction of the several States of the Union is a matter of statutory provision ; and the laws of some of the States have been numerous and very specific on this subject, espe- cially in Maine and Massachusetts. A form of trespass by which the farmer is sometimes put to great annoyance is that of picking berries. This practice, which is so common, is clearly contrary to 1 Trustees of Brookhaven v. Strong, 60 N. Y. 56. 102 FARM LAW. law; and not only is the trespasser himself liable to the farmer, but all who buy and consume the berries so picked are responsible. A very peculiar case! on this point arose in Maine. The plaintiff owned a large tract of wild-land over which berry-pickers had roamed, without leave or license, for a long time. The berry- pickers carried away some fifteen hundred bushels of blueberries, which they had picked on this land, to the defendants, who carried on a large blueberry-canning es- tablishment at Jonesport, Maine. The plaintiff brought a suit, and recovered over one thousand dollars against the defendants, although the latter had paid for the berries, which were brought to them by the trespassers, The court said: “The persons who picked the berries from the land in the plaintiff's possession were tres- passers. They sold the berries to the defendants. The defendants received them at their factory for the pur- pose of ‘canning’ them, as it is termed. The berries were of a rapidly decaying character, requiring imme- diate use, undoubtedly received from time to time, and it would have been quite impracticable to redeliver the property to the plaintiff, had he duly demanded the same. But the defendants, by their purchase and possession of the berries, although acting in good faith and in ignorance of the want of title in their ven- dors, assumed thereby an ownership and exercised a dominion over the property which rendered them liable in trover to the true owner without any demand therefor.” 1 Parker v. Wright, 66 Me. 229. LAW AS TO REAL PROPERTY. 103 Sect. 7. A Fee Simple. Commencing with the different estates in land, we find that a fee simple is the largest possible estate which one can have in lands. It is a pure inheri- tance, clear of any qualification or condition, and it gives a right of succession to all the heirs generally. It is where lands are given to a man and to his heirs, absolutely, without any end to or limitation upon the estate. Every restraint upon alienation is inconsistent with the nature of a fee simple; and if a partial re- straint be annexed to a fee, as a condition not to alien for a limited time, or not to a particular person, it ceases to be a fee simple, and becomes a fee subject to a condition. Sect. 8. Estates Tail. Estates tail are estates of inheritance, which, instead of descending generally, go to the heirs of the donee’s body, which means his lawful issue, his children, and through them to his grandchildren in a direct line, so long as his posterity endures in a regular order and course of descent, and upon the death of the first owner, without issue, the estate determines. Estates tail were introduced into America with the other parts of the English jurisprudence, and subsisted in full force until the Revolution, which, in effect, by destroying all titles of nobility in the United States, swept away the chief inducement to the maintenance of this system of estates, and estates in fee tail are 104 FARM LAW. now almost obsolete, in this country, and are, in most of the States, abolished by legislative enactments. Srcr. 9. An Estate for Life. The next estate in importance, as computed in the scale of gradation, is an estate for life, because ordina- rily measured, as to its duration, by the term of a human life, and regarded as a freehold. When the measure of the duration is the life of the holder of the estate, it is called an “estate for the tenant’s own life;” when the estate is for the life of another person, it is designated “an estate pur autre vie.” The former estate, in the estimation of the law, is considered better and of a higher nature than one for the life or lives of another or others. Among the instances of life estates is where a grant is made to one expressly for his life, or to a woman so long as she shall remain a widow, or to a man and his wife so long as they shall both live. So the reservation by the grantor of the use and control of the granted premises during his life creates in him a life estate, with all its incidents.1 A tenant for life is regarded as so far the owner of an independent estate, that, unless restrained by the terms of his grant, he may convey his entire interest, or carve any lesser estate out of the same, in favor of another. In other words, he may assign his entire estate, or underlet the whole or any part of the same for a longer or shorter period, not exceeding that of his 1 Webster v. Webster, 83 N. H. 22; Richardson v, York, 14 Me. 216. LAW AS TO REAL PROPERTY. 105 own. He cannot, however, convey his estate except by deed.1 Every tenant for life is entitled, of common right, to take reasonable estovers, that is, wood from off the land, for fuel, fences, agricultural erections, and other necessary improvements.” But the tenant must not destroy the timber, nor do any other permanent injury to the inheritance; for that would expose him to the action and penalties of waste. His lawful representa- tives are entitled to the profits of the growing crops, in case the estate determines, by his death, before the prod- uce can be gathered. The rule extends to every case where the estate for life determines by the act of God, or by the act of the law, and not to cases where the estate is terminated by the voluntary, wilful, or wrongful act of the tenant himself* It is applicable to the products of the earth, which are annual, and raised by the yearly expense and labor of the tenant; but not to grass or fruits, which are the natural products of the soil, and do not essentially owe their annual existence to the cul- tivation of man. Sect. 10. Dower. Dower is a provision which the law makes for the support of the wife, after her husband’s death; being a life interest in one third part of all the real estate which the husband was seised during marriage. 1 Stewart v. Clark, 18 Met. 79; Jackson v. Van Hoesen, 4 Cow, 325. 2 Smith v. Jewett, 40 N. H. 5382; Hubbard v, Shaw, 12 Allen, 122. 5 Penhallow v. Dwight, 7 Mass. 34. * Chesley v. Welch, 37 Me. 106; Whitmarsh v. Cutting, 10 Johns. 360. 106 FARM LAW. In America, although the right of dower has been modified, and is not uniform through all the States, it has been regarded, nevertheless, with considerable favor, as conforming to the supposed wants and condi- tion of their citizens. For the consummation of the title to dower, three things are requisite; viz. marriage, seisin of the hus- band, and his death. In all of the States, with the exception of Louisiana, Indiana, and California, dower will be found to exist in some form, and, in most of them, substantially the dower of the common law. In Maine, New Hampshire, and Massachusetts the widow is not dowable of land in a wild state, uncon- nected with any cultivated farm. The wife loses her right of dower by joining the husband in a conveyance of the land SecT. 11. An Estate by Curtesy. An estate by curtesy is that which the husband takes upon the death of his wife, in the real property of which she died seised, or was seised at any time since 1 A conveyance of a right of dower by a wife in the lifetime of her husband is void, and cannot operate against her by way of estoppel in equity. She can bar her right of dower in no other mode than as pre- scribed by statute. Mason «. Mason, Supreme Ct. Mass., 2 Eastern Reporter, 111, filed Sept., 1885. A widow's right, before assignment of dower, is a mere chose in action ; and courts of equity, in the absence of statute, cannot subject it to payment of her judgment debts. Her refusal to have it assigned is not a fraud on her creditors. Maxon v. Gray, Supreme Ct. Mass., 1 Eastern Reporter, 53, filed Feb., 1885. LAW AS TO REAL PROPERTY. 107 the marriage, provided they have had lawful issue born alive. It is a freehold estate for the term of his natu- ral life. This right also extends to her equitable estate in lands. In this country it has been adopted as a common-law estate in all the older States, though modi- fied in some by statute provisions. The essential requisites to entitle a husband to cur- tesy are: first, marriage; second, seisin of wife during coverture; third, birth of a child alive; fourth, death of the wife. Upon the latter’s death the husband is at once in as tenant by the curtesy, without having to resort to a preliminary form to consummate his title to the same. SECT. 12. Estate for Years. An estate for years is created by contract, techni- cally called a lease, for a definite period, with a recom- pense of rent; and it is deemed an estate for years, 1 In New York it is competent for the wife, by her separate convey- ance in her lifetime, to defeat her husband’s right of curtesy. The right is expressly given by statute in Maine, Massachusetts, Rhode Island, Delaware, Minnesota, Kentucky, New York, Vermont, and Wisconsin. In Virginia, New Jersey, New Hampshire, Alabama, Missouri, Illinois, Tennessee, Maryland, North Carolina, Mississippi, and Connecticut it is recognized by the courts as an existing estate. No estate by curtesy exists in Indiana, Dakota, South Carolina, Geor- gia, Louisiana, California, or Nevada. In Iowa it is abolished, but the husband takes the same estate in the property left by the wife that she would have had in his estate by right of dower. In Ohio and Oregon curtesy is given, though no issue be born alive; while in Texas all property which a husband and wife bring into the marriage, or ac- quire the same, becomes the common property of both. By statute in Kansas the husband takes one half of his wife’s separate property absolutely, upon her decease without will; and if without issue, he takes an absolute property in all her estate. . 108 FARM LAW. though the number of years should exceed the ordinary limit of human life. The English Statute of Frauds has been adopted by several States, with some modifications, and declares, among other things, that all leases for more than three years, “not put in writing and signed by the parties,” &c., should have the force and effect of estates at will only. In Alabama, Arkansas, Georgia, Maryland, Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, South Carolina, and Wisconsin an estate for a period longer than one year must be created by writing, other- wise the agreement is void. In Maine, New Hampshire, Vermont, Massachusetts, and Indiana all leases not in writing create mere estates at will. Sect. 13. An Estate at Will. An estate at will in lands is that which a tenant has by an entry made thereon under a demise to hold during the will of either party. The length of notice required to determine such an estate may be fixed by agreement of the parties, or it may be prescribed by statute, as is done in many of the States. When a tenant has come rightfully into possession of lands by permission of the owner, and continues to occupy the same after the time for which, by such permission, he has a right to hold the same, he is said to be a tenant by sufferance. “He is one who comes in by right, and holds over without right,” says Black- stone! He holds without right, and yet is not a tres- 12 Bl. Com. 150, LAW AS TO REAL PROPERTY. 109 passer. No notice to quit need be given him, for he has a mere naked possession. Secr. 14. A Joint Tenancy. A joint tenancy is where several persons hold any subject of property jointly in equal shares by purchase at the same time and by the same instrument. Each has the whole and every part with the benefit of sur- vivorship, unless the tenancy be previously severed. While joint tenants constitute but one person in re- spect to the estate, as to the rest of the world between themselves each is entitled to his share of the rents and profits so long as he lives, but the survivor or sur- vivors take the entire estate upon his death, to the ex- clusion of his heirs or personal representatives. It can only be created by conveyance, devise, or act of the parties, and not by operation of law. By the common law in England, if an estate is con- veyed to two or more persons, without it being indi- cated how the same is to be held, it will be understood to be a joint tenancy; but the policy of the American law is opposed to the notion of survivorship, and there- fore such estates are regarded as tenancies in common. In many of the States the rule of survivorship is abolished by statute, except in the case of joint trus- tees, while in others all estates to two or more persons are taken to be tenancies in common, unless expressly declared to be joint tenancies by the deed or instrument creating them.} 1 In the following States every estate granted or devised to two or more persons in their own right is construed to be a tenancy in com- 110 FARM LAW. Szot. 15. A Tenancy in Common. A tenancy in common is created where two or more hold real estate by unity of possession; they may hold by several and distinct titles, or by title derived at the same time, by the same deed or descent. In this re- spect the American law differs from the English doc- trine. By the latter, this tenancy is created by deed or will, or by a change of title from joint tenancy or co- parcenary, or it arises in many cases by operation of law. In this country it may be created by descent, as well as by deed or will; and whether the estate be created by act of the party or by descent, tenants in common are deemed to have several and, distinct free- holds, —a circumstance which is a leading characteristic of tenancy in common. Each owner, in respect to his share, has all the rights, except that of sole possession, which pertain to an absolute estate; and, if he wishes to convey his share to his co-tenant, he must do so by the same kind of deed that would be necessary to con- vey it to a stranger. What would be necessary in a deed or will to consti- tute a tenancy in common, where several persons are grantees or devisees of an estate, is often a question of nice law; but generally in the United States, wherever two or more persons acquire the same estate by the mon, unless expressly or by manifest implication declared to be a joint tenancy: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, New Jersey, New York, Michigan, Minnesota, Wisconsin, IIli- nois, Delaware, Arkansas, Mississippi, Missouri, California, Indiana, Iowa, Maryland, Oregon, and Kansas. LAW AS TO REAL PROPERTY. 111 same act, deed, or devise, and no indication of an in- tent is therein made to the contrary, they will hold as tenants in common. The owners can compel each other, by process of law, to make or submit to a partition; and they are liable to each other for waste, and are bound to account to each other for a due share of the profits of the estate in common. Independently of statutory enactments in the dif ferent States, the law as to making improvements or repairs upon the common property, when either co- tenant is unwilling to join in the same, seems to be this: One tenant in common cannot go on and make improvements, erect buildings and the like, on the com- mon property, and make his co-tenant liable for any part of the same, nor has hea right to hold and use these to the exclusion of his co-tenants. If the prop- erty is not susceptible of convenient partition, like a mill or a house, and requires repairs for its preserva- tion, either tenant may have a writ at common law de reparatione facienda to compel his co-tenant to join in making such repairs. In Massachusetts it is doubted whether this rule applies to mills; and it is, at least, so far equitably modified by statute, that if one part-owner of a mill repairs it against the consent of his partners, he must look to the profits for his indemnity. 112 FARM LAW. Nors. —For requirements as to acknowledgments, &c., of deeds in the various States, see APPENDIX. Short Form of a Deed. Know all men by these presents, that I, John Smith, of Boston, County of Suffolk and Commonwealth of Massachu- setts, for and in consideration of the sum of two thousand dollars, to me paid by Henry F. Stevens, of Cambridge, County of Middlesex and commonwealth aforesaid, the re- ceipt whereof is hereby acknowledged, do give, grant, sell, and convey unto the said Henry F. Stevens all that (de- scribing the premises): To have and to hold the same to the said Stevens, his heirs and assigns, to his and their use forever. And JI, the said John Smith, covenant with the said Stevens, his heirs and assigns, that I am lawfully seised in fee of the premises; that they are free from all incum- brances ; that I have a good right to sell the same as afore- said; and that I will warrant and defend the same to the said Stevens, his heirs and assigns, against the lawful claims and demands of all persons. [If the wife is to join, here add the following: ‘And Sarah D., the wife of John Smith aforesaid, in consideration of the sum of twenty dollars to her in hand paid, the re- ceipt whereof she doth hereby acknowledge, hereby releases to the said Stevens, his heirs and assigns, all her right, title, and interest to or in any dower in the aforegranted premises.” ] In testimony whereof, I, the said John Smith [together with Sarah my wife], have hereunto set my [or our] hand LAW AS TO REAL PROPERTY. 113 [or hands] and seal [or seals] this first day of September, A.D, 1885. Joun SMITH. [sEat. ] Saran D. Smita. [sEau.] Signed, sealed, and delivered in presence of Wituiam TUCKER. Evwarp H. Atwoop. Acknowledgment of foregoing. SUFFOLK CounrTY, ss. Before me, the subscriber, one of the justices of the peace within and for the said county, personally appeared the above-named John Smith [and Sarah D., his wife], who in due form of law acknowledged that he [they] did sign and seal the above indenture as his [their] free act and deed. In witness whereof, I have hereunto set my hand and seal this tenth day of September, a. p. 1885. Asert R. Hoimes, In States which require a separate examination of the wife, the above form should be varied after the word “ac- knowledged” by proceeding as follows: ‘“‘the above inden- ture to be their act and deed, and described that the same may be recorded as such. The said Sarah D. being of full age, and by me examined separate and apart from her said husband, and the contents of the foregoing indenture being made fully known to her, declared that she did, voluntarily and of her own free will and accord, seal, and, as her act and deed, deliver the same, without any coercion or com- pulsion of her said husband. In witness whereof,” d&c., as before. 114 FARM LAW. Quitclaim Deed. Know all men by these presents, that we, Morrison D. Tuttle, of Portland, County of Cumberland and State of Maine, and Eliza, wife of the said Morrison, in considera- tion of the sum of ten thousand dollars, to us in hand paid by David Clark, of Watertown, County of Middlesex and State of Massachusetts, the receipt whereof we do hereby acknowledge, have bargained, sold, and quitclaimed, and by these presents do bargain, sell, and quitclaim, unto the said David Clark, and to his heirs and assigns forever, all our and each of our right, title, interest, estate, claim, and de- mand, both at law and in equity, and as well in possession as in expectancy, of, in, and to all that certain messuage or tract of land situate in Portland aforesaid, bounded and de- scribed as follows (here insert an accurate description of the property granted) ; together with all and singular the here- ditaments and appurtenances thereunto belonging or in any- wise pertaining; to have and to hold the above-released premises to the said Clark, his heirs and assigns, to his and their use and behoof forever. [If desired to make special warranty against any incum- brance made by grantor, here insert as follows: ‘And I, the said Morrison D. Tuttle, for myself and my heirs, ex- ecutors, and administrators, do covenant with the said David Clark, his heirs and assigns, that the above-granted premises are free from all incumbrances made or suffered by me; and that I will, and my heirs, executors, and adminis- trators shall, warrant and defend the same to the said David Clark, his heirs and assigns, forever, against the lawful claims and demands of all persons claiming by, through, from, or under me, but against none other.” ] In witness whereof, we, the said Merrison D. Tuttle and Eliza his wife, have hereunto set our hands and seals this LAW AS TO REAL PROPERTY. 115 first day of October, in the year of. our Lord one thou- sand eight hundred and eighty-five. Morrison D. Turruz. [szat.] Eviza Tutte. [SEAL. } Executed and delivered in presence of CuarLes W. Barrierr. AmBROSE LAWRENCE. Acknowledgment of foregoing. State or MassacHUSETTs, County oF SUFFOLK. \ss, On this second day of October, in the year 1885, before me personally come Morrison D. Tuttle and Eliza his wife, who are known by me to be the individuals described in and who executed the foregoing instrument, and acknowledged that they executed the same. Rurvs Metvin, Justice of the Peace. 116 FARM LAW. CHAPTER IX. PRIVATE AND PUBLIC WAYS. Sect. 1. How may be acquired. 2. Cannot be granted orally. 3. Must be used in a Particular Way. 4. A Right of Way by Prescription. 5. A Way of Necessity. 6. Owner of Land has Right to designate the Way. 7. Repairs of Road over another’s Land. 8. Erection of Gates and Bars by Owner of Land. 9. What is a ‘* Highway.” 10. Title to Land in Roadway. 11. No Right to obstruct Highway. 12. Liability for Injuries occasioned by Defective Highway. 18. May pass on Adjoining Land when Road is obstructed. 14. Law of the Road. : Sect. 1. How may be acquired. A RIGHT of way over another’s farm may be ac- quired — Ist. By grant from the owner of the soil. 2d. By long-continued use or prescription. 3d. By actual necessity. To gain a permanent right by grant, it must have been created by deed; but it conveys no right to the soil, rocks, or other things within the bounds of the way. PRIVATE AND PUBLIC WAYS. 117 Srcr. 2. Cannot be granted orally. A perpetual way over one farm as appurtenant to another cannot be granted orally, for an oral license to use such way is revocable. Even if the licensee has been to expense and labor in building it, the li- censor can terminate it by a notice to the licensee to discontinue its use, without payment or tender to the latter of the amount so expended by him. For in- stance, an oral license to erect a dam upon another's land, or to cut and maintain a ditch thereon for draw- ing water to the licensee’s land, is revocable? This is the general rule of law, except in Maine, New Hamp- shire, Pennsylvania, Ohio, Indiana, and Iowa, the de- cisions in which States are based upon the grounds of’ estoppel and part performance of a contract. Sect. 3. Must be used in a Particular Way. If a way is granted for a particular use, it must be used for that purpose alone. Thus, where one was granted a way to haul wood over it, it was held that stone could not be hauled. Such use would be an in- convenience to the owner of the land charged with the easement, and an abuse of the right. As was well put by Judge Bell,’ “The grantee of a way is limited to use his way for the purposes and in the manner specified 1 Morse v. Copeland, 2 Gray, 302; Foster v. Browning, 4 R. I. 47. 2 Cook v. Stearns, 11 Mass. 533; Mumford v. Whitney, 15 Wend. 380. 3 French v. Marstin, 24 N. H. 440, 449. 118 FARM LAW. in his grant. He cannot go out of his way, nor use it to go to any other place than that specified, if the use in this respect is restricted.” The leading case on this subject is Atkins v. Bord- man,! in which the whole subject of rights of way and their limitations was ably examined by Chief Justice Shaw, of Massachusetts. We quote a few words from his elaborate opinion: “An easement of way consists in the right to use the surface of the soil for the pur- pose of passing and repassing, and the incidental right of properly fitting the surface for the use. But the owner of the soil has all the rights and benefits of the ownership, consistent with such easement. AIL which the person having the easement can lawfully claim is the use of the surface for passing and repassing, with a right to enter upon and prepare it for that use, by levelling, gravelling, ploughing, or paving, according to the nature of the way granted or reserved; that is, for a foot-way, a horse-way, or a way for all teams and carriages. If the way is not bounded or limited, or there be no one in existence, the grant of a way would be, in point of width and height, such as is reasonably necessary and convenient for the purposes for which it is granted. If a foot-way, it shall be high and wide enough for persons to pass with such things as foot- passengers usually carry. If for teams and carriages, it shall be sufficient to admit carriages of the largest size, or loads of hay and other vehicles usually moved by teams.” 1 2 Met. (Mass.) 457. PRIVATE AND PUBLIC WAYS. 119 Sect. 4. A Right of Way by Prescription. A right of way is acquired by prescription by an adverse use for twenty years, but in some States fif- teen years is the period. The way must have been used continuously, and under a claim of right, and not by the permission or consent of the owner of the servient land. Thus, where a drain is constructed from the land of a farmer with his consent, across the land of his neighbor, by the latter, for his own benefit, and it is continued for twenty years, the neighbor acquires no right to an adverse use and enjoyment of an easement in the farmer’s land. The time of enjoyment for the acquirement of the title by prescription is deemed to be uninterrupted when it is continued from ancestor to heir and from seller to buyer. It must be a lawful continuation from one person to another, and any in- terruption of the enjoyment by an adverse claim and possession destroys the prescription.? Sect. 5. A Way of Necessity. A right of way may arise from necessity in several respects.2 If a farmer sells his land to another, which is wholly surrounded by his own land, the purchaser is entitled toa right of way over the farmer's ground 1 Sargent v. Ballard, 9 Pick. 251; Rowland v. Wolfe, 1 Bailey (S. C.), 56; Colvin v. Burnett, 17 Wend. 564; Hannefin v. Blake, 102 Mass. 297. 2 Oliver v. Pitman, 98 Mass. 46-50; Kimball v. The Cochecho R. R. Co., 27 N. H. 448; Smyles v. Hastings, 22 N. Y. 217. A grantor may have a way of necessity, although he conveyed with covenants of warranty. 120 FARM LAW. to the purchased land. Chancellor Kent says:! “The weight of authority is, that the grantor has a right of way to his remaining land, in case of necessity, when he cannot otherwise approach his land. The law pre- sumes a right of way reserved, or rather gives a new way, from the necessity of the case, and the new way ceases with the necessity for it.” And so limited is the way of necessity, in respect to its duration, that, though it remains appurtenant to the land in favor of which it is created, so long as the owner thereof has no other means of access, yet the moment the owner of such a way acquires, by purchase of other land or otherwise, a way of access from the highway over his land to the land to which the way belongs, the way of necessity is at an end? Srct. 6. Owner of Land has Right to designate the Way. The owner of the servient land has the right to des- ignate the way to be used by the purchaser; but if he declines to exercise such right, the purchaser may se- lect a suitable route, but in doing so must regard the interest and convenience of the owner of the land? When the purchaser has made his selection, which must be reasonable, he will be confined to the same way, and he cannot change its course according to his 1 Cushing, C. J., in Pingree v. McDuffie, 56 N. H. 306. 2 Viall v. Carpenter, 14 Gray, 126; N.Y. Life Ins. Co, v. Milnor, 1 Barb. Ch. 854; Pearson v. Spenser, 3 Best & S. 761; Pierce v. Sel- leck, 18 Conn. 821; Abbott v. Stewartstown, 47 N. H. 228. 8 Bass v. Edwards, 126 Mass. 445. PRIVATE AND PUBLIC WAYS. 121 wishes.! Still, if the owner of the land obstructs the way, the purchaser may pass over his adjoining land, doing no unnecessary damage.” Sect. 7. Repairs of Road over another's Land. The ownership of a right of way carries with it the right to make all necessary repairs, at all reasonable times, and to remove all obstacles to its enjoyment.$ Sscr. 8. rection of Gates and Bars by Owner of Land. The owner of the land over which a right of way exists, enjoys the privilege of erecting suitable gates and bars at the entrances thereto, in the absence of any agreement to the contrary; and should cattle escape or come upon the land by the carelessness of the person entitled to the right of way, in leaving the gates open, the latter will be responsible for all damage thereby caused.4 The fact that gates or bars have been erected twenty years by the owner of land over which a right of way exists, will not deprive the person entitled to such way of the same. In a very recent case® in Massachusetts, it was de- cided that a notice posted near a way, stating that it 1 Leonard v. Leonard, 2 Allen, 543; Holmes v. Seely, 19 Wend. a Leonard v. Leonard, 2 Allen, 543. 8 McMillan v. Cronin, Exor., 75 N. Y. 474; Prescott v. Williams, 5 Met. (Mass.) 429. 4 Garland v. Furber, 47 N. H. 301; Bakeman v. Talbot, 31 N. Y. 366. 5 Smith v. City of Lowell (unpublished), S. J. C., filed May, 1885. 122 FARM LAW. was a private way and dangerous, is sufficient to relieve a city of liability to a person who, entering upon such way, received injuries by falling, although such person may not have seen the notice. Sect. 9. What is a “ Highway.” Every thoroughfare, which is used by the public, is a highway, whether it be a carriage-way, horse-way, foot-way, or a navigable river. Sect. 10. Zitle to Land in Roadway. A deed of a farm bounded on a highway gives to the farmer the title to the centre of the road, and he has the exclusive right to the soil, subject to the right of passing in the public. He can maintain an action against any person who digs up the soil, or cuts down any trees growing on the side of the road, or deposits wood, wagons, or other things thereon. He may carry the water in pipes under the highway, and use the grass, trees, stones, sand, or anything of value to him which are within his half of the road, subject to the right of the public to travel over the highway. The farmer can maintain an action against any per- son who cuts his trees on the highway in order to move buildings. The fact that the owner has obtained per- mission from the town would not exempt him from liability. And no person has a right to hitch his horse 1 Brown v. Brown, 8 Met. 576; Hollenbeck v. Rowley, 8 Allen, 473 ; Cole v. Drew, 44 Vt. 49; Dunham v. Williams, 37 N. Y. 251; Banks v. Ogden, 2 Wall. 68. PRIVATE AND PUBLIC WAYS. 123 to a tree which stands on the roadside, or pick up fruit which has fallen upon the ground from the same.! SEcT. 11. No Right to obstruct Highway. However, the farmer would not be justified in leav- ing his wagons, wood, or other things upon the road- side, even though some distance from the travelled path, if the highway surveyor has ordered them away, as obstructing public travel. And should an accident happen by his neglect in this respect, he would be liable both civilly and criminally for obstructing the highway? All persons havea right to pass along a public street, but not to stop and obstruct it. The crowd of passers may be so great as in itself to be an obstruction, yet so long as it is a moving crowd, whether of individuals or vehicles, there is a legal use of the street.2 In a New York case* it was held actionable for the defend- ant to stand on the sidewalk of the plaintiff’s land where he lived, and insult him with abusive language. In the words of the court: “Suppose a strolling musi- cian stops in front of a gentleman’s house, and plays a tune or sings an abusive song under his windows, can there be a doubt that he is liable in trespass? The tendency of the act is to disturb the peace, to draw to- gether a crowd, and to obstruct the street. It would 1 White v. Godfrey, 97 Mass. 472. 2 Linsley v. Bushnell, 15 Conn. 225. 3 N.Y. & Harlem R. R. Co. v. Forty-second Street, &c. R. R. Co., 50 Barb. 285. # Adams v. Rivers, 11 Barb. 390. 124 FARM LAW. be no justification that the act was done in a public street. The public have no need of the highway but to pass and repass. If it is used for any other purpose not justified by law, the owners of the adjoining land are remitted to the same rights they possessed before the highway was made. They can protect themselves against such annoyances by treating the intruders as trespassers.” Where a peanut-vendor set his stand, which was three feet wide and twenty-two feet long, upon the inner side of the sidewalk, and close against the wall of a building, it was held that he was liable to an indictment for obstructing the highway, notwithstand- ing the stand did not impede the public travel. Srct. 12. Liability for Injuries occasioned by Defective Highway. A city or town is liable for all injuries which may be occasioned by its neglect to keep the streets, roads, or bridges in proper repair. Thus, if there is a dan- gerous hole in a highway, and a person, using ordinary care, steps into the hole and is injured, or his horse steps into it and is injured, the town is liable for such injuries; but the person, suffering the injury, must, in no way, contribute to it by his own act, for, if he knows the street to be dangerous, and can conveniently avoid such danger, or if he knows a bridge to be un- safe, and there is another convenient way of crossing the stream, he must use such way to avoid the danger. PRIVATE AND PUBLIC WAYS. 125 Sect. 13. May pass on adjoining Land when Road is obstructed. If a highway becomes impassable from temporary causes, a traveller may lawfully pass over the adjoin- ing fields, even though it be necessary to take down fences and drive through corn-fields, replacing the fences after having passed through. In a Massachu- setts case Judge Bigelow states the law as follows: “ Highways being established for public service, and for use and benefit of the whole community, a due regard for the welfare of all requires that, when temporarily obstructed, the right of travel should not be inter- rupted. It is a maxim of the common law, that where public convenience and necessity come in con- flict with private rights, the latter must yield to the former. A person travelling on a highway is in the exercise of a public, and not a private, right. If he is compelled by impassable obstructions to leave the way and go upon adjoining lands, he is still in the exercise of the same right. The rule does not, therefore, violate the principle that individual convenience must always be held subordinate to private rights, but clearly falls within that maxim which makes public convenience and necessity paramount.” If the highway is discontinued or located elsewhere, the land reverts to the farmer, for he owns the soil, and he can enclose it as part of his farm. The legislature has power to pass a law providing for the taking of land for a public highway, paying the 1 Campbell v. Race, 7 Cush. 408. 126 FARM LAW. owner its appraised value, and whatever damages he may sustain. No land can be taken, without the con- sent of the owner, for a private use ; the statutes author- izing a taking for that purpose are usually regarded as unconstitutional. Sect. 14. Law of the Road. One of the most usual incidents of travel upon a highway is the meeting and passing of vehicles and teams. To prevent collision and to secure travel from interruption, it is necessary that there should be some certain rules in regard to their passing. Where two wagons are approaching each other from opposite directions, it is the duty of each to drive to the right of the middle of the road a reasonable dis- tance, in order that each may conveniently pass the other. If it is difficult or unsafe for one to pass the other, on account of his wagon being heavily loaded, or on account of the roadway being too narrow or dan- gerous, or from any cause, he should stop for a reason- able time, at a convenient part of the road, in order to enable the other person to pass. It is a general rule that light vehicles must give way, when they can do so with safety, to those which are heavily laden! Thus, it has been laid down that if a party, in travelling, voluntarily goes upon the prohibited side of the way, and from the size or character of his team or vehicle, or state of the road, should be unable to surrender to such as he might meet the portion of the way to which 1 Wrinn v. Jones, 111 Mass. 360; Kennard v. Burton, 25 Me. 39. PRIVATE AND PUBLIC WAYS. 127 they were entitled, the fact that he could not yield the way might not, and probably would not, furnish a le- gal excuse exonerating him from liability for an injury sustained by one passing, who was nowise in fault. The wrong consists in placing himself where he may be the occasion of the resulting injury; that is, on the prohibited side of the way. It would be legal fault in him to be found there, occupying that part of the way belonging for the time to another. His inability to leave the part of the way, voluntarily occupied, would not form a valid excuse, exonerating him from liability for the injury sustained by another, by reason of such occupancy. But the traveller whose part of the way is trenched upon by another cannot, for that reason, carelessly or imprudently rush upon the party or his team or vehicle, and if he sustain an injury recover damages therefor. He may probably attempt to pass, if such attempt would be reasonably safe and prudent. If otherwise, he must delay, and seek re- dress for the detention, if damages result therefrom. But if, in a prudent attempt to pass, he sustain injury, there would seem to be no reason to doubt that the law would give redress. And where a traveller is delayed by such occupancy of the prohibited side of the road, the damage arising from the detention would probably furnish a substantial ground of action. In nearly all the States statutory enactments have been passed upon this subject. Thus, in Massachusetts? “when persons meet each other on a bridge or a road, travel- 1 Per Woods, J., in Brooks v. Hart, 14 N. H. 307. 2 Pub. Stat. Mass., chap. 93, sects. 1, 2. 128 FARM LAW. ling with carriages, wagons, carts, sleds, sleighs, or other vehicles, each person shall reasonably drive his carriage or other vehicle to the right of the middle of the trav- elled path of such bridge or road, so that their respec- tive carriages or other vehicles may pass each other without interference. The driver of a carriage or other vehicle passing a carriage or other vehicle travelling in the same direction shall drive to the left of the mid- dle of the travelled part of a bridge or road; and if the bridge or road is of sufficient width for the two vehicles to pass, the driver of the leading one shall not wilfully obstruct the same.” This is substantially the law in Maine, New Hampshire, and Vermont, and has been followed in other States. By the words “the travelled part” of the road, used in the above act, is intended that part which is usually wrought for travelling. But when that part of the road which is wrought for travelling is hidden by snow, and a path is beaten and travelled on the side of the wrought part, persons meeting in such beaten and travelled path are required to drive their vehicles to the right of the middle of such path? Another duty which travellers are bound to observe is to drive at a moderate rate of speed. To drive a carriage through a crowded or populous street at such a rate or in such a manner as to endanger the safety of the inhabitants is an indictable offence at common law, and amounts to a breach of the peace. In this country, driving at a rate exceeding the ordinary travelling pace 1 Jaquith v, Richardson, 8 Met. (Mass.) 218; Smith v. Dygert, 12 Barb. 613. PRIVATE AND PUBLIC WAYS. 129 in the streets of populous cities is very generally pro- hibited by statutes or municipal ordinances! Thus, in Boston the law is that “whoever, having the care or use of a horse or other beast of burden, carriage, or draught, rides, drives, or permits such horse or other beast to go at a greater rate of speed than seven miles an hour in a public street, except in wards twenty-two, twenty-three, twenty-four, and twenty-five, and in that part of ward fifteen which lies south of Sweet Street, or in a public street in said excepted portion of the city, at a greater rate of speed than twelve miles an hour, shall be liable to a penalty of not less than five or more than fifty dollars.” 2 1 United States v. Hart, 1 Peters (Cir. Ct.), 590. In this case it was held that the United States mail-coaches are subject to the same rule as other vehicles in this respect. 2 Rev. Ordinances of 1883, p. 82, sect. 45. 130 FARM LAW. CHAPTER X. THE LAW OF BOUNDARIES AND FENCES. Secr. 1. The Law relating to Boundaries. 2. The Law relating to Fences. 8. Railroad Fences, 4, Highway Fences. 5. State Statutes respecting Fences. (a) Maine. (d) Massachusetts. (b) New Hampshire. (e) Rhode Island. (c) Vermont. (f) Connecticut. Sect. 1. The Law relating to Boundaries. Tue farmer may be assisted in determining how far his farm extends, or its proper boundaries, by the fol- lowing circumstances : — 1st. The number of acres stated in the deed. 2d. The length of the boundary lines running around the farm. 3d. The visible monuments, such as trees, rocks, stakes, and stones, described as corners of the farm. The last is by far the most important, and in case of any difference between them, must govern. In giving construction to the description of the prem- ises in a deed, the intent of the parties, if by any pos- sibility it can be gathered from the language employed, will control. A general rule of construction in rela- tion to boundaries, and one which is well sustained THE LAW OF BOUNDARIES AND FENCES. 131 by the authorities, is thus stated by Judge Gray in a Massachusetts case:1 “Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made a part, as a house, a mill, a wharf, or the like, the side of the land or structure referred to as a boundary is the limit of the grant; but where the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not in its description or nature include the earth as far down as the grantor owns, and yet which has width, as in the case of a way, a river, a ditch, a wall, a fence, a tree, or a stake, the centre of the thing so running over or standing on the land is the line of boundary of the lot granted.” Boundaries may be inconsistent. The farm may be said to contain so many acres, and to measure five hundred rods from such a boundary to such a boun- dary in a westerly direction. But there may be no boundary in that direction, and the distance from one bound to the other may be four hundred rods in a northwesterly direction, and the farm may contain more or fewer acres than the description. In such a case, evidence may show, if it can with reasonable certainty, exactly what the bounds actually are, as certain trees, posts, or rocks. And if the bounda- ries are made certain, they will control distances, directions, and contents, unless the discrepancies are 1 City of Boston v, Richardson, 18 Allen, 154. 132 FARM LAW. so great as to show either fraud on one part or the other, or that the parties labored under some mis- take, and could not have agreed in their minds, one to sell and the other to buy the same farm; for this agreement of minds is, in law, the very essence of a contract.1 If the number of acres enters into the de- scription, it is common to add, “be the same more or less.” This guards effectually against any inaccuracy. But, without it, the failure in the number of acres would not avoid the deed, unless it were so large as, with other circumstances, to show fraud.2_ Thus, where land was sold as “containing 600 acres, be the same more or less,” and by actual survey the lot was found to con- tain only 421 acres, the buyer was held to have no redress for the difference. In a case* of the same description Judge Gray states the law as follows: “In an agreement for the sale and purchase of land for an entire sum, either a description of the land by its boundaries, or the insertion of the words ‘more or less’ or equivalent words, will control a statement of the quantity of land or of the length of one of the boundary lines, so that neither party will be entitled to relief on account of a deficiency or sur- plus, unless in case of so great a difference as will nat- urally raise the presumption of fraud or gross mistake in the very essence of the contract.” 1 Perman v. Wead, 6 Mass. 131; Smith v. Dodge, 2 N. H. 303; Call v. Barker, 12 Me. 325; Wendell v. Jackson, 8 Wend. 183. 2 Williams v. Hathaway, 19 Mass. 887; Perkins v. Webster, 2 N. H. 287. 8 Mann v. Pearson, 2 Johns. 87. * Noble v. Googins, 99 Mass. 231. THE LAW OF BOUNDARIES AND FENCES. 133 If there be ever so much fraud, the fraudulent party cannot take advantage of it. Only the defrauded party can avoid the contract. If the seller represents the farm to contain so many acres when he knows it does not, and then points out the boundaries accurately and truly, the buyer is without redress, because he has the means of correcting the misrepresentation. In the words of Chief Justice Chapman,! “If the repre- sentations relate to the quantity and productiveness of the soil, or the number of acres within boundaries which are pointed out, they are not actionable, for they are to be regarded as the usual and ordinary means adopted by sellers to obtain a high price, and are always understood as affording to buyers no ground for omitting to make inquiries.” Tf the land of a farmer is bounded by or on a brook, river, stream, &c., it usually extends to the middle of the current; not always to the middle of the water, but generally to the thread of the stream,—ad filum aque? In like manner, if a deed is bounded on a mill-pond, reservoir-pond, or any artificial pond through which a perceptible current makes its way, the farmer ordina- rily owns to the centre of the current.? But in relation to grants bounding on ponds, lakes, or other large bod- ies of water, the grant extends only to the water’s edge, and not into the pond; the public having rights in 1 Mooney v. Miller, 102 Mass. 217. 2 Hatch v. Dwight, 17 Mass. 298; Claremont v. Carlton, 2 N. H. 369; Lowell v. Robinson, 16 Me. 245, 357; Warner v. Southworth, 6 Conn. 471; Ex parte Jennings, 6 Cow. 518. 3 Penney v. Watts, 9 Gray, 269; Bradley v. Rice, 13 Me. 201. 134 FARM LAW. such large bodies of water as are useful for navigation, boating, sailing, and the like.t In New England, where a farm is bounded on the seashore, the whole flats between high and low water mark (if not over a hundred rods) belong to the owner of the upland, while in other States the boundary line is to “high-water mark,” and the public have rights in the space between high and low water mark, including that of collecting sea-weed. In a leading case? in New Hampshire, Judge Bel- lows states the law as follows: “In Massachusetts and Maine it is now an established rule of property that the riparian owner has title to low-water mark; if not over one hundred rods, subject only to the public right of navigation. It is not the result of positive law, but of long-continued usage, which has become the common law of those States. The origin of this usage has been traced to an ordinance of the Colony of Mas- sachusetts, passed in 1641, by which the ownership of uplands upon navigable waters was extended to low- water mark, if not over one hundred rods. As a rule of positive law, the ordinance of 1641 was not binding upon New Hampshire; but when we consider that a union was effected in that same year between New Hampshire, or so much of it as was then settled, and Massachusetts, which was continued for about forty years, making them practically one government, we should naturally expect that the same usages would 1 West Roxbury v. Stoddard, 7 Allen, 167; State v. Gilmanton, 9 N. H. 461; Wheeler v. Spinola, 54 N. Y. 377. 2 Clement v. Burns, 43 N. H. 609. THE LAW OF BOUNDARIES AND FENCES. 135 spring up here under that ordinance. That a similar usage did spring up, and has always existed, giving to the riparian owner an interest in the shore of navigable waters, subject only to the paramount right of naviga- tion, which interest he may vindicate by suit, we think there is good reason to believe.” If the farmer’s deed describes the farm as bounding “by the sea,” “by the salt water,’ “bay, harbor, cove, creek, stream, river, or tide-water,” it generally includes the whole flats down to low-water mark.! On the other hand, if the deed bounds “ by the shore,” “ beach, strand, flats, marsh, or cliff,’ it extends only to high-water mark, and does not vest any right in the flats.2 And it seems that the ambiguous expressions “to the beach or sea,’ “‘to the seashore,” “to the sea or flats,” would give the farmer title to low-water mark.? Islands situated in a river belong to the person who owns the land on that side of the river to which they are nearest; but where an island is so formed in the bed of a river not navigable as to divide the channel and lie partly on each side of the thread of the river, it will be divided between the riparian proprietors, ac- cording to the original thread of the river. The “thread of the river” is the middle of the main current, and may be on one side or the other of the middle of the river.t 1 Boston v. Richardson, 105 Mass. 355; Clement v. Burns, 43 N. H. 609; Pike v. Monroe, 36 Me. 313; Kenyon v. Nichols, 1 R. I, 106. 2 Niles v. Patch, 13 Gray, 254. ® Doane v. Willcutt, 5 Gray, 328. 4 Deerfield v. Arms, 17 Pick. 41; Granger v. Avery, 64 Me. 292; People v. Canal Appraisers, 13 Wend. 355. 136 FARM LAW. Src. 2. The Law relating to Fences. By the common law of England, which was formerly adopted, in this regard, in some of the American States, no person was bound to fence his land from his neigh- bor’s adjoining field unless by force of prescription (that is, at least twenty years’ usage), but every person was bound to keep his cattle within his own land, at his peril, “for every man’s land,” says Blackstone, “is in the eye of the law enclosed and set apart from his neighbor’s, and that either by a visible and natural fence, as one field is divided from another by a hedge, or by an ideal, invisible boundary, existing only in con- templation of law, as one man’s land adjoins to an- other’s in the same field.”! Therefore, if the owner neglected to confine them upon his own land, he was answerable for any trespass they might commit, even though they entered from the land of a third person or from the highway, and for any injury they might sus- tain by going upon the land of another he was pre- cluded from recovering damages.? In other States, the common-law rule does not seem to have prevailed, for the owner of animals was under no obligation to fence them in, and they could wander over any unfenced land as if it were a common. The occupant of land must keep them out at his peril, but is justified in keeping them away ‘from his unfenced land in any 1 3 Black. Com. 209; Rust v. Low, 6 Mass. 90; Avery v. Maxwell, 4N.H. 36. 2 Rust v. Low, 6 Mass. 90; Stafford v. Ingersoll, 8 Hill, 38 ; Bathea v. Taylor, 3 Stew. (Ala.) 483. THE LAW OF BOUNDARIES AND FENCES. 137 reasonable manner. If they should break through a sufficient fence, their owners are liable for damages consequent upon the trespass as at common law. The legal obligation of owners of adjoining lands to make and maintain partition fences, where no pre- scription exists and no agreement has been made, rests entirely upon the provisions made by statute in the different States.2 (See page 142.) Fences or boundaries are to be built on the line; the expense, when made according to law, is to be borne equally between the parties. They are, in their nature, real estate, belonging to the owner of the land, and pass, by his deed of the land, without being expressed or designated as part of the thing granted. An agreement to maintain a boundary and division fence is irrevocable, except by mutual consent or in some way provided by statute* Ifa person neglects to maintain the fence and his own animals are injured, or if he sustains loss by the entry upon the land of ani- mals belonging to others, he has no remedy. And if animals stray upon the land through a defective fence, or by reason of the want of a fence, which he is obliged himself to build, he is liable as a trespasser. A cove- 1 Cleveland R. R. Co. v. Elliott, 4 Ohio, 474; Waters v. Moss, 12 Cal. 535; Lows v. N. C. R. R. Co., 7 Jones (N. C.), 468; N.Y. & Erie R. R. Co. v. Skinner, 19 Penn. St. 301 ; Herold v. Myers, 20 Towa, 378; Stoner v. Shugart, 45 Ill. 76; Larkin v. Taylor, 5 Kan. 433. 2 Lyon v. Merrick, 105 Mass. 71; Richardson v. Melburn, 11 Md. 340. 8 Murray v. Van Derlyn, 24 Wis. 67; Mott v. Palmer, 1 Comst. (N. Y.) 564. 4 York v. Davis, 11 N. H. 241. 5 Cincinnati, &c. R. R. Co. v. Waterson, 4 Ohio St. 424; Philps v. Cousins, 29 Ohio St. 135. 138 FARM LAW. nant to erect and keep in repair a division fence is one that runs with the land, and is binding upon the assigns of the covenantor.! Where a party is not bound by prescription, agree- ment, or assignment of fence-viewers to maintain a fence between his land and that of an adjacent owner, he may sustain an action against the latter if the lat- ter’s cattle escape into his land. But the owner is never required to fence his land against any cattle but those which are rightfully in the adjoining land.? The obligation to repair a fence may arise by force of an agreement, by prescription, or by statute, and a person will be held liable for all the consequences aris- ing from his neglect, if he fails to make the requisite repairs. Thus, where the plaintiff's horse escapes into the defendant’s field, through defect in fences which the defendant was bound to repair, and was killed by fall- ing into a ditch, it was held that the defendant was liable for the damages.® But the occupant of the land, and not the owner, is the one who is bound to keep the fence in repair, and he is entitled to such use and occupation of the adjoin- ing land as is necessary to carry out that duty.* 1 Bronson v. Coffin, 108 Mass. 175; Kellogg v. Robinson, 6 Vt. 276; Blain v. Taylor, 19 Abb. Pr. (N. Y.) 228; Duffy v. N.Y. & Harlem R. R. Co., 2 Hilt. (N. Y.) 496; Easter v. Little Miami R. R. Co., 14 Ohio St. 48. 2 Thayer v. Arnold, 4 Met. 589; Lawrence v. Combs, 37 N. H. 831; Lord v. Wormwood, 29 Me. 282; Coxe v. Robbins, 4 Halst. (N. J.) 884; No. Penn. R. R. Co. v. Rehman, 49 Penn. St. 101; Hol- laday v. March, 3 Wend. 142; Rust v. Low, 6 Mass. 97. 8 Anonymous, 1 Vent. 264. * Carpenter v. Halsey, 60 Barb. 45; 8.c. affirmed, 57 N. Y. 657; Henry v. Jones, 28 Ala. 885. THE LAW OF BOUNDARIES AND FENCES. 139 No one is bound to keep up fences between the ad- joining lands of which he is owner; and even where adjoining lands which have once belonged to different persons, one of whom was bound to repair the fences between the two, afterward became the property of the same person, the pre-existing obligation to repair the fences is destroyed by unity of ownership. And where the person who has so become the owner of the en- tirety afterward parts with one of the two pieces of land, the obligation to repair the fences will not revive, unless express words be introduced into the deed of conveyance to that effect. Sect. 3. Railroad Fences. In England and in this country, as a general rule, railroad companies are required by statute to fence their tracks, and are responsible for all injuries to animals, whether by negligence or not, in case of de- fault In a case where some sheep got through the railway fence, strayed upon the track, and were killed, the company pleaded that the fence was sufficient for all ordinary purposes, but that the keeping of sheep in the field referred to had not been contemplated. It was admitted that the fence was not sufficiently strong for holding sheep, and it was ruled that if the use (being 1 3 Wait’s Act. & Def. 340 and cases cited. 2 Norris v. Androscoggin R. R. Co., 39 Me. 273; Purdy v. N. Y., &c. R. R., 61 N. Y. (16 Sick.) 353; Gorman v. Pacific R. R. Co., 26 Mo. 441; McCall v. Chamberlain, 13 Wis. 637; Pittsburg, &. R. R. Co. v. Methven, 21 Ohio St. 586; Holden v. Rutland, &. R. R. Co., 80 Vt. 297; Gardner v. Smith, 7 Mich. 410. 140 FARM LAW. an ordinary use) was such as to render a stronger fence necessary, it was the duty of the company to have provided it. But where no statutes exist and no obligation is im- posed by covenant or prescription, the common-law doc- trine applies, and the company is no more bound to fence its land than an individual. As was stated by Judge Bell,! “At common law, owners of adjoining lands owe each other no duties, and are subject to no obligations to maintain fences. By the statute of New Hampshire they are bound, if the lands are improved, to maintain the partition fence equally. As owners of land, where they own their track, railroad companies are subject to the same liabilities as other owners. But these statute provisions do not apply to such corpora- tions where they own nothing in their track but an easement, a right of way merely. In such a case neither the company nor the owner, by this statute, would be bound to fence. The interest of both re- quires that the road generally should be fenced. The question is of great importance both to the land-owners and to the railroad companies, since upon its decision depends, in a great degree, the liability of the one or the other for injuries to the animals and crops of the land-owner, and to the engine and cars of the railroad, and to the person and property borne upon the road, 1 Dean v. Sullivan R. R. Co., 22 N. H. 316; Hurd v. Rutland, &c. R. R. Co., 25 Vt. 116; N.Y. & E. R. R. Co. v. Skinner, 19 Penn. St. 298; No. E. R. R. Co. v. Sineath, 8 Rich. (S. C.) 185; Williams ». Mich. Cent. R. R. Co., 2 Mich. 259; Clark v. Syracuse, &c. R. R. Co., 11 Barb. 112; Vandergrift v. Delaware R. R. Co., 2 Houst. (Del.) 297. THE LAW OF BOUNDARIES AND FENCES. 141 arising from such defects of the fences.” If cattle are killed by a train while trespassing upon a railroad track they cannot be recovered for ;1 but if, through neglect, the railway company suffers the fences to go to decay, or by accident they are broken down, so as to allow the passage of cattle, &c., through or over them, and they are not repaired within a reasonable time, the company is responsible for injuries sustained to cattle entering through the breach? Sect. 4. Highway Fences. The common-law rule, which did not require the owner to fence his land, but nevertheless compelled him at his peril to keep his cattle on his own grounds and prevent them from escaping, has an equal applica- tion to the owners of land adjoining public highways. In a leading case,? it was said that, “under our more recent statutes the law now is in this State [Vermont] as it ever has been in England and other of the Amer- ican States, that the owner of land is under no obli- gation to fence his own land along a highway. The 1 Waldron v. P. S. & P. R. R., 35 Me. 422; Hurd v. Rutland & B. RB. RB. Co., 25 Vt. 116; Eames v. B. & W. R. BR. Co., 14 Allen, 151 ; Price v. N. J. R. BR. & F. Co., 31 N. J. 229; Munger v. Tonawander RB. R. Co., 4 Comst. (N. Y.) 349; Housatonic R. R. Co. v. Knowles, 30 Conn. 313; No. Penn. R. R. v. Rehman, 49 Penn. St. 101; U. P. R. RB. ». Rollins, 5 Kan. 167; Logansport & B. R. R. Co. v. Caldwell, 88 Ill. 280. 2 Bartlett v. Dubuque, &. R. R. Co., 20 Iowa, 188; Brown v. Milwaukee, &. R. R. Co., 21 Wis. 39; Spinner ». N. Y. C., &e. R. R. Co., 6 Hun (N. Y.), 600. 8 Barret, J., in Holden v, Shattuck, 34 Vt. 336; Chambers v. Mat- thews, 18 N. J. L. 368. 142 FARM LAW. obligation in this respect results only from his duty to restrain his own cattle from trespassing upon his neighbor. He may open his own land to the highway, and his cattle may enjoy the full range of the margin, without trespassing upon anybody.” Sect. 5. State Statutes respecting Fences, (a) Maine. —The statutes of the State of Maine pro- vide for the election of two or more fence-viewers at the annual town meetings in each town, whose duties are also prescribed by statute. And in case no fence- viewers are found acting, for reasons stated in the statute, the selectmen of the town are required to act in that capacity. With respect to what are legal fences in the State, it is provided by statute that all fences which are four feet high and in good repair, made of rails, timber, boards, or stone-walls; and brooks, rivers, ponds, ditches, and hedges, or other things, which, in the judgment of the fence-viewers having jurisdiction thereof, are equivalent thereto, shall be accounted legal and sufficient fences. And the occupants of lands enclosed with fences are required to maintain partition fences between their own and the adjoining enclosures, in equal shares, while both parties continue to improve them. If any party refuses or neglects to repair or rebuild any such fence, the ag- grieved party may complain to two or more fence- viewers of the town where the land is situated, who, after due notice to such party, must proceed to survey it; and if they determine that it is insufficient, they THE LAW OF BOUNDARIES AND FENCES. 143 are required to signify it in writing to the delinquent occupant, and direct him to repair or rebuild it within such time as they may judge reasonable, not exceeding thirty days. If the fence is not repaired or rebuilt ac- cordingly, the complainant may make or repair it, and after notice given that it has been adjudged sufficient by two or more of the fence-viewers, and the value thereof, with the fence-viewers’ fees, certified under their hands, he may demand of the occupant or owner of the land, where the fence was deficient, double the value and fees thus ascertained; and in case of neg- lect or refusal to pay the same for one month after demand, he may recover the same by an action on the case, with interest at the rate of one per cent a month; and if the delinquent owner or occupant repairs or rebuilds such fence without paying the fees of the fence-viewers, certified by them, double the amount thereof may be recovered by the complainant as before provided. When the occupants or owners of adjacent lands dis- agree respecting their rights in partition fences, and their obligation to maintain them, on application of either party, two or more fence-viewers of the town where the lands lie, after reasonable notice to each party, may, in writing, ‘under their hands, assign to each his share thereof, and limit the time in which each shall build or repair his part of the fence, not exceeding thirty days. The assignment may be re- corded in the town clerk’s office, when it becomes binding upon the parties, and they are required there- after to maintain their part of said fence. If such 144 FARM LAW. fence has been built and maintained by the parties in unequal proportions, and the fence-viewers adjudge it to be good and sufficient, they may, after notice as aforesaid in writing under their hands, award to the party who built and maintained the larger portion the value of such excess, to be recovered in an action on the case against the other party, if not paid within six months after demand. The parties to the assign- ment are required to pay the fees of the fence-viewers, in equal proportions; and if either neglects to pay his proportion within one month after demand, the party: applying to the fence-viewers may pay the same, and may recover, in an action on the case, of the delinquent party double the amount of his proportion of the fees. And in case either party refuses or neglects to build and maintain the part of the fence thus assigned him, it may be done by the aggrieved party; and he will thereupon be entitled to the double value and expense ascertained, to be recovered as provided in the other cases stated. All division fences are required to be kept in good repair throughout the year, unless the occupants of adjacent lands otherwise agree. When from natural impediment, in the opinion of the fence-viewers hav- ing jurisdiction of the case, if is impracticable or un- reasonably expensive to build a fence on the true line between the adjacent lands, and the occupants disagree respecting its position, on application of either party, as in other cases provided, and after notice to both par- ties, and a view of the premises, the fence-viewers may determine, by a certificate, under their hands, commu- THE LAW OF BOUNDARIES AND FENCES. 145 nicated to each party, on which side of the true line, and at what distance, or whether partly on one side and partly on the other, and at what distances, the fence shall be built and maintained, and in what pro- portions by each party; and either may have the same remedy against the other as if the fence was on the true line. And where adjacent lands have been occu- pied in common, without a partition fence, and either party desires to occupy his in severalty, or where it is necessary to make a fence running into the water, and the parties liable to build and maintain it disagree, either party may have the line divided in the same manner as in the other cases provided, except that the fence-viewers may allow a longer time than thirty days for building the fence, if they think proper, having regard to the season of the year. In other respects, the remedy of the aggrieved party is the same as in the other cases referred to. Where one party ceases to improve his land, or lay open his enclosure, he must not take away any part of his partition fence adjoining the next enclosure im- proved, if the owner or occupant thereof will pay there- for what two or more fence-viewers, on due notice to both parties, determine to be its reasonable value. And where any land which has been unenclosed is afterward enclosed, or used for pasturing, its occupant or owner is required to pay for one half of each par- tition fence on the line between his land and the en- closure of any other occupant or owner, and its value must be ascertained by.two or more of the fence-viewers of the town where such fence stands, if the parties do 10 146 FARM LAW. not agree, and it must be certified in writing; and after the value is thus ascertained, on notice to each owner or occupant, if he neglects or refuses for thirty days, after demand, to pay it, the proprietor of the fence may have his action on the case for such value, and the costs of ascertaining it. If the line on which a parti- tion fence is to be made is to be divided, is the boun- dary between two or more towns, or partly in one town and partly in another, a fence-viewer must be taken from each town. Where a fence between the owners of improved lands is divided, either by fence-viewers or by written agree- ment of the parties, recorded in the town clerk’s office where the land lies, the owners are required to erect and support it accordingly; but if any person lays his lands common and determines not to improve any part of them adjoining such fence, and gives six months’ notice to all occupants of adjoining lands, he will not be required to maintain such fence while his lands so lie common and unimproved. The foregoing provisions of the statute are declared not to extend to house-lots, the contents of which do not exceed half an acre; but if the owner of such lot improves it, the owner of the adjacent land must make and maintain one half of the fence between them, whether he improves it or not; and, further, the provisions of the statute are declared not to make void any written agreement respecting public fences. Where buildings or fences have existed more than twenty years fronting upon any way, street, lane, or land appropriated to the public use, the bounds of THE LAW OF BOUNDARIES AND FENCES.’ 147 which cannot be made certain by records or monu- ments, such buildings or fences shall be deemed to be the true bounds thereof. But when the bounds can be made certain, no time less than forty years will make such fence the boundary. And fences erected and maintained as above will not be regarded as nuisances. Legal and sufficient fences are to be made on each side of land appropriated for a railroad, where it passes through enclosed or improved land, or wood-lots be- longing to a farm, before the construction of the road, and the railroad company is made liable to a penalty for neglecting to make or repair such fence. Provision is also made by statute for proprietors of lands enclosed in common, regulating the subject of fencing their com- mon lands; but as the same affects few persons except the parties interested in such lands in common, and they will most likely be informed in respect to the statute, it is unnecessary to recite such provision in this place. (b) New Hampshire. —The owners of adjoining lands under improvement are required to build and repair the partition fence between them in equal shares, and any division of such fence made by the parties in writing, and recorded in the town records, is made binding upon the parties and their successors. Such division may also be established by usage and acquiescence of the parties and those under whom they claim for twenty years. If the parties do not agree upon a division, the fence-viewers, upon application, must make such divi- sion, which, when recorded in the town records, shall be 148 FARM LAW. of the same effect as a division by the parties; and a copy of the record is made evidence. It is provided that all fences four feet high and in good repair, consisting of rails, timber, boards, or stone-wall, and all brooks, rivers, ponds, creeks, ditches, hedges, and other things deemed by the fence-viewers to be equiv- alent thereto, shall be accounted legal and sufficient fences. The fence-viewers, upon application of either party, must view any fence alleged to be insufficient, and if, in their judgment, it is in that condition, they shall give notice to the delinquent party, requiring him to build and repair the same within a limited time. If the party so notified does not build or repair the fence within the time stated, then the owner of the adjoining land can build and repair the same, and have the fence so built or repaired appraised by the fence-viewers, and is en- titled to recover double the appraised valuation, from the delinquent party, with costs of suit, in an action of assumpsit for labor and materials. The owner of improved land adjoining unimproved land of another, having erected a division fence, may demand and recover of the owner of such adjoining land, when .he begins to improve the same, the value of such part of the fence as upon a division then or previously made it was his duty to build; and in case, after a division of fence made or established between adjoining owners, a new division for any cause shall become necessary, then either party, who has main- tained any part of the fence under the former divi- sion, may demand and recover of the owner of the THE LAW OF BOUNDARIES AND FENCES. 149 adjoining land, at the time of the new division, the value of such part of the fence as may be assigned to him on said new division. In such a case, if the parties do not agree, the fence- viewers, on application, shall appraise such part, and the party may recover the value appraised or agreed, in an action of assumpsit for so much fence sold, if the same is not paid in thirty days after demand. When the owner of land ceases to improve the same or lays it in common, he cannot remove his part of the partition fence, but is not bound to repair it so long as the land remains unimproved or in common. The party neglecting to build or keep in repair any partition fence which he is bound to maintain is liable for damages arising from such neglect, and shall have no remedy for damages happening to himself therefrom. Every application to the fence-viewers must be in writing, and they shall give notice, to the other party interested, of the time and place for considering the same, and, after hearing the evidence, must make their decision in writing and give a copy to each of the par- ties, within a week. Upon being sworn that they have acted impartially and to the best of their judgment, their decision is final. . When lands of different persons which are required to be fenced are bounded by or separated by a river, brook, or body of water, if the occupant of the land on one side refuses or neglects to join with the occupant of the land on the other side in making a partition fence, the fence-viewers shall view the land, and if they find a necessity for a more adequate fence than such stream 150 FARM LAW. or body of water affords, and that it is impracticable to build a fence on the boundary line without unreasonable cost, they shall, after giving notice to the parties to be present, determine how and where the fence shall be set up and maintained, as to them shall appear just, and shall reduce their decision to writing and cause the same to be recorded in the town records; and if either of the parties then refuses or neglects to make and maintain his part of the fence, according to the deci- sion, the same may be made and maintained in the same manner as is provided for the making and main- taining of fences in other cases determined by the fence- viewers. The proprietors of every railroad shall erect and maintain a sufficient fence on each side of their road, and if they neglect to maintain such a fence, it may be built by the owner of the land, who can recover double the expense thereof of the company, by an action on the case against the proprietors. If any person shall wilfully and maliciously prostrate or open the fence of another, or cause the same to be done, and thereby expose the land or property of the latter to injury, by cattle or other animals, he may be fined not exceeding one hundred dollars and imprisoned for a term not exceeding one year. The statute also regulates the fencing of common lands owned by proprietors. (c) Vermont.—In the State of Vermont, the statute requires all fences to be four and a half feet high, and in good repair, and constitutes the barriers indicated by the statutes of Maine legal and sufficient ; and owners THE LAW OF BOUNDARIES AND FENCES. 151 of land bordering on highways are not bound to main- tain fences upon such highways. Owners of adjoining lands are required to make and maintain equal portions of the division fence between their respective lands, unless either owner chooses to let his lands lie vacant. When the owner of uncultivated, unimproved, and un- occupied lands chooses to let his land lie open and common, he is not required to fence the same, unless the adjoining owner occupies his land; and then the other owner is compelled to fence his land, unless the selectmen of the town decide that he ought to be ex- cused from building any portion of the division fence; and the selectmen are to decide what constitutes un- cultivated land, not properly belonging to a farm, and all questions relating to the same. In cases where the owners of land are not required to maintain the division fence, each one will be liable for any damage by reason of any animal straying from his lands to and taken on the occupied lands of others. Persons required to main- tain a division fence, who may neglect to keep the same in repair, are liable for damages done to the opposite party, in consequence of such neglect; and any person sustaining such damages, on giving ten days’ notice to the party who ought to maintain the fence, may put the fence in repair and collect the cost of the same, with the damages done by the delinquent party. Whenever the lands of adjoining owners are suffered to lie without a division fence, neither party can legally pasture his lands until the parties have agreed to oc- cupy in common; and if the parties cannot agree as to occupation of the lands in common, the fence-viewers 152 FARM LAW. must decide the same upon the application of either party. In case adjoining owners of: lands, so situated that the division fence cannot be built on the line, cannot agree as to the place where the fence shall be built, application may be made to the fence-viewers of the town, who must fix the same. Whenever an owner of adjoining lands chooses to occupy his land, and the other chooses to let his lie vacant, the former may build the whole division fence; and when the other party commences to occupy his land, he will be required to pay for his portion of the fence. In case a division fence shall be suddenly destroyed by fire, winds, or floods, the person who ought to re- build or repair the same must do so, within ten days, after being notified for that purpose; and, in the mean time, he will be liable for damages done by estrays. Parties may agree in writing in respect to their division fences; but the agreement must be witnessed by two witnesses, and acknowledged. JFence-viewers are re- quired to examine fences, on request of any party in- terested, under a penalty for neglect. Where the line of adjoining owners is a town line, and they cannot agree upon a division fence, the same must be deter- mined by a board of fence-viewers from the two towns. This is the substance of the statute of Vermont upon the subject of fences, although the details of procedure are omitted. Railroad corporations are required to maintain legal fences along their roads, where neces- sary; and until such fences are built, they are liable to pay all damages occasioned by want of fences. This provision, however, does not apply to a case where the THE LAW OF BOUNDARIES AND FENCES. 153 land-owner has been paid for fencing the road, and has agreed with the company to maintain the fences. (d) Massachusetts. —1t is provided that fences four feet high and in good repair, consisting of rails, tim- ber, boards, or stone, and brooks, rivers, ponds, creeks, ditches, and hedges, or other things which the fence- viewers (within whose jurisdiction the same shall lie) shall consider equivalent thereto, shall be deemed legal and sufficient. And the respective occupants of lands enclosed with fences are required, so long as both parties improve the same, to keep up and maintain partition fences between their own and the next adjoining enclosures in equal shares. If a party refuses or neglects to repair or rebuild a partition fence which he ought to maintain, the ag- grieved party may complain to two or more fence- viewers of the place, who, after due notice to each party, shall survey the same; and if they determine that the fence is insufficient, they shall signify the same, in writing, to the delinquent occupant, and direct him to repair or rebuild the same within such time as they may judge reasonable, not exceeding fifteen days ; and if the fence shall not be repaired accordingly, the complainant may make or repair the same. When a deficient fence built up or repaired by a complainant, as thus provided, is, after due notice to each party, ad- judged sufficient by two or more of the fence-viewers, and the value thereof, with their fees, ascertained, by a certificate under their hands, the complainant may demand, either of the occupant or of the owner of the 154 FARM LAW. land, where the fence was deficient, double the sum so ascertained; and in case of neglect or refusal to pay the sum so due for one month after demand, he may recover the same, with interest at one per cent a month, in an action of contract. When a controversy arises about the rights of the re- spective occupants in partition fences, or their obliga- tion to maintain the same, either party may apply to two or more fence-viewers of the place in which the lands lie, who, after due notice to each party, may, in writing, assign to each his share thereof, and direct the time within which each party shall repair his share, in the manner before provided; which assignment, being recorded in the city or town clerk’s office, is made bind- ing upon the parties, and upon the succeeding occupants of the lands, who are required thereafter to maintain their respective parts of such fence. And if a party refuses or neglects to erect and maintain the part of a fence assigned to him by the fence-viewers, the same may, in the manner hefore provided, be erected, and an action maintained by the aggrieved party; and he will be entitled to double the value thereof, ascertained and recovered in the manner aforesaid. When, in a controversy between adjoining occupants as to their respective rights in a partition fence, it ap- pears to the fence-viewers that either of the occupants had, before any complaint made to them, voluntarily erected the whole fence, or more than his just share of the same, or otherwise become proprietor thereof, the statute provides that the other occupant shall pay the value of so much thereof as may be assigned to him to THE LAW OF BOUNDARIES AND FENCES. 155 be repaired or maintained, to be ascertained and re- covered as provided in this chapter. And the statute requires partition fences to be kept in good repair throughout the year, unless the occupants of the lands on both sides shall otherwise agree. When lands of different persons which are required to be fenced are bounded upon or divided from each other by a river, brook, pond, or creek, if the occupant of the land on the one side refuses or neglects to join with the occupant of the land on the other side in mak- ing a partition fence on the one side or the other, or they shall disagree respecting the same, two or more fence-viewers of the place or places wherein such lands lie, on application made to them, are required by the statute forthwith to view such river, brook, pond, or creek; and if they determine the same not to answer the purposes of a sufficient fence, and that it is imprac- ticable to fence on the true boundary line without un- reasonable expense, they are then required, after giving notice to the parties to be present, to determine how, or on which side thereof, the fence shall be set up and maintained, or whether partly on one side or partly on the other side, as to them may appear just, and to re- duce their determination to writing; and if either of the parties refuses or neglects to make and maintain his part of the fence according to the determination of the fence-viewers, the same may be made and maintained as before provided, and the delinquent party is made subject to the same costs and charges, to be recovered in like manner. When lands belonging to two persons in severalty 156 FARM LAW. have been occupied in common without a partition fence between them, and one of the occupants desires to occupy his part in severalty, and the other occupant refuses or neglects, on demand, to locate the line where a fence ought to be built, or to build a sufficient fence on his part of the line when divided, the party desiring it may have the same divided in the manner provided in the same chapter, and the fence-viewers may, in writ- ing, assign a reasonable time, having regard to the sea- son of the year, for the erection of a fence; and if the occupant complained of does not make his part of the fence within the time assigned, the other party may, after having built his part of the fence, make the part of the other, and recover therefor double the expense thereof, together with the fees of the fence-viewers. When a division fence between the owners of im- proved lands has been made either by fence-viewers or under an agreement in writing between the parties, re- corded in the office of the clerk of the town or city, the several owners of lands and their heirs and assigns must erect and maintain such fences, agreeably to such division; but if one party lays his lands common and determines not to improve them, on giving the other party six months’ notice of such determination, he will not be required to support such fences during the time that his lands lie common and unimproved. When one party ceases to improve his land or lays open his enclosure, he must not take away any part of the partition fence belonging to him, and adjoining to the next enclosure, provided the other party will allow and pay for his part of such fence; and where lands THE LAW OF BOUNDARIES AND FENCES. 157 which have lain unenclosed are afterwards enclosed or used for depasturing, the owner or occupant of such lands must pay for one half of such partition fence, to be ascertained by two or more fence-viewers, if the parties do not agree. The fence-viewers may determine whether a partition fence is required between the lands of the respective occupants, and when the division line is in dispute or unknown, they may designate a line on which the fence shall be built, and may employ a surveyor therefor, if necessary, and for the purposes of maintaining a fence such line will be deemed the division line, until it shall be otherwise determined by judicial proceedings. And if, after a fence has been built upon the line thus desig- nated, it shall be judicially determined that the true division line is in another place, each occupant is re- quired to remove his part of the fence to, and rebuild it upon, such line; and in case either party shall refuse or neglect to remove and rebuild his share of the fence, the other may apply to the fence-viewers, as in other cases provided, with like effect. When a water fence, or fence running into the water, is necessary to be made, the same shall be built in equal shares, unless otherwise agreed by the parties; and, in case either party refuses or neglects to make or maintain his share, similar proceedings may be had, as in other cases of the like kind respecting other fences. Any fence-viewer, duly chosen and sworn, who, when requested, unreasonably neglects to view a fence, or to perform other duties imposed upon him, shall forfeit 158 FARM LAW. five dollars, to be recovered by action of tort to the use of the place, or on complaint to the use of the Commonwealth, and he shall also be liable for all dam- ages to the party injured. Each fence-viewer shall be paid at the rate of two dollars per day for the time he is employed. Such payment shall be made by all or by such of the parties in dispute, and in such pro- portions, as shall be determined by a certificate in writ- ing, under the hands of the fence-viewers, acting in each case. And if any person or persons, so required to pay the whole or any portion of said fees, neglect to pay the fence-viewers within thirty days after the certificate has been delivered, the fence-viewers may recover, in an action of tort, double the amount of the fees due from such delinquent party. Railroad corporations are obliged to fence the entire length of their road, except at the crossings of high- ways, &c. Whoever maliciously breaks down, injures, mars, or defaces a fence belonging to or enclosing lands not his own, or maliciously throws down or opens gates, bars, or fences, and leaves the same down or open, will be punished by imprisonment in the house of correction for a period not exceeding six months, or by a fine not exceeding five hundred dollars. When buildings or fences have been erected and continued for more than twenty years fronting upon any way, street, lane, or land appropriated to the public use, the bounds of which cannot be made certain by records or monuments, such buildings or fences shall be deemed to be the true bounds thereof. But when THE LAW OF BOUNDARIES AND FENCES. 159 the bounds can be made certain, no less than forty years will fix the boundary of the same. Provision is also made by statute for proprietors of general fields. (e) Rhode Island. —In Rhode Island, the following are declared to be lawful fences, viz.: A hedge with a ditch three feet deep, well staked, at the distance of two feet and a half from the ditch, bound together at the top, and sufficiently filled to prevent small stock from creeping through, if the bank of the ditch be not less than one foot above the surface of the ground. A hedge without a ditch is required to be four feet high, staked, bound, and filled as a hedge with a ditch; a post and rail fence on the bank of a ditch, four rails high, each well set in posts, and not less than four feet and a half high; a stone-wall fence, four feet high, with a flat stone hanging over the top thereof, or a good rail or pole thereon, well staked or secured with crotchets or posts; a stone-wall without such flat stones, rails, or posts on the top is required to be four feet and a half high; and all other kinds of fences are required to be four feet and a half high. All partition fences are required to run on the divid- ing line, and the owners have the right to place one half of the width thereof on the land of each adjoining proprietor. Such fences are to be kept up and main- tained in good order throughout the year, unless the parties concerned otherwise agree. Partition fences be- tween lands under improvement must be made and maintained in equal halves, in length and quality, by the respective proprietors. When a proprietor improves 160 FARM LAW. his land, the land adjoining being unimproved, he must make the whole partition fence; and if the adjoining proprietor or possessor afterwards improves his land, he is required to pay for one half of the partition fence, according to the value thereof at that time; and there- after both proprietors are required to maintain their respective proportions of the line fence, whether they continue to improve their lands or not. Coterminous owners or possessors of land adjoining water, whenever their land is under improvement, are required to make and maintain a sufficient water fence to prevent trespass of each other’s cattle, in the same manner as other partition fences are directed to be made. In all cases where partition fences are erected by the agreement of the parties in interest, or other lawful manner, the proprietors of the fences, their heirs or assigns, may hold and improve the same without molestation, and will be excused afterward from making any other fence, except by the special agreement of the parties to the contrary. All agreements in regard to division fences are required to be registered in the town clerk’s office. All tracts of marsh land, so situ- ated and exposed to the flow or wash of the sea as to render it impracticable for the several owners thereof to keep up partition fences around the respective shares or lots, are exempt from the operation of the statute in respect to partition fences; but remedies are pre- scribed in cases of trespasses on such lands. In cases of controversy in respect to partition fences and the right of the parties therein, or their obligations to main- tain the same, the same is to be settled by a fence- THE LAW OF BOUNDARIES AND FENCES. 161 viewer of the town; and the proceedings thereon are all definitely pointed out by the statute. (f) Connecticut.— The proprietors of land shall make and maintain sufficient fences to secure their fields; and a rail fence four feet and a half high, a stone-wall four feet high, well and substantially erected, and any other fence which, in the judgment of the selectmen, shall be equal to such a rail fence, shall be deemed a sufficient fence; and adjoining proprietors shall each make and maintain half of the divisional fence, which shall have its centre in the middle of the dividing line, and shall not exceed in width, if a straight wood or hedge fence, two feet, if a brick or stone fence, three feet, if a crooked rail fence, six feet, and if a ditch, eight feet, not includ- ing the bank, which shall be on the land of the maker; and no ditch shall be made adjacent to a house-lot, with- out the consent of the owner of the house. If one proprietor shall make the whole fence, and af- terward the adjoining proprietor shall enclose his: land, he shall purchase and maintain half of the divisional fence; and if the parties do not agree in dividing and appraising it, either may call on the selectmen of the town in which said fence lies, who may set out to each his proportion of said fence, and determine how much shall be paid to the party erecting or owning the same, —a certificate of which, under the hands of the selectmen, shall be sufficient evidence for the recovery of the same; but no action therefor shall be maintained unless the proprietor who shall have first occupied his land and made the whole of the divisional fence shall have caused it to be so divided and appraised within ll 162 FARM LAW. six years after the adjoining proprietor, or those under whom he holds, shall have first occupied his land by particular enclosure, nor unless commenced within one year after such division and appraisal shall have been made. When a fence between adjoining proprietors has never been divided, and either refuses to divide it, the other may call on the selectmen to make a division, who shall, in writing, set out the better part to him who erected it, or to the party holding under him; and the cost, cer- tified by the selectmen in writing, shall be paid by him who refused to make such division; and such division, being recorded in the town where the land lies, shall be binding on the parties. If any person shall neglect to keep his divisional fence in repair, the party aggrieved may call on the selectmen to view it, who, if they find it insufficient, shall immediately give written notice thereof to the person bound to repair it; and if he do not in fifteen days repair it, the party aggrieved may do- so, and re- cover of the other party double the value of said re- pairs, as estimated in writing by the selectmen, and of their fees. When the dividing line shall be a stream or pond which is not a sufficient fence, and it is impracticable to make the fence in the line, if either party shall re- fuse to make a divisional fence on either side, two se- lectmen of the town shall, on application of either party, determine on which side the fence shall be erected and maintained, or whether partly on one side and partly on the other, and what part each shall make and main- THE LAW OF BOUNDARIES AND FENCES. 163 tain, and deliver their determination, in writing, to the parties, and if either shall refuse to make and maintain his part of the fence, the other may do so and recover the expense of the party so refusing. When there is no fence between adjoining proprie- tors, or when a particular enclosure shall be divided between two or more proprietors, and either shall de- sire to have a division fence erected, any two selectmen of the town in which such land is situated, and if the same is situated in more than one town, then one from each town, may view said dividing line, first giving no- tice of the time of view to said proprietors; and if they deem it reasonable that said fence should be erected at the expense of each of said adjoining proprietors, shall divide and stake out said line, and assign to each his portion thereof, and limit a time within which it shall be erected; and each proprietor shall erect a sufficient fence on the portion of said line so set to him; and if either shall make his portion of said fence, and the other shall neglect to make his portion, within such time, said selectmen may make, or authorize him who has erected his portion to make it, and the expense thereof, as certified by the selectmen, shall be paid by the other proprietor. When a particular enclosure has been or shall be divided, and the parties cannot agree respecting the di- vision of a fence belonging to the same, or when adjoin- ing proprietors cannot agree respecting the division of an existing fence, and there is no record of any division of it, any of them may call out any two selectmen of the town where such fence is situated, and if the same 164 FARM LAW. is in two towns, one from each town, who shall view such fence, and make a division, and award in favor of and against such parties, as they shall deem just, such sums as shall seem reasonable; which award shall be in writing, signed by said selectmen, describing such divi- sion, and limiting a time for the payment of the sums awarded, and, being recorded in the town or towns where such fence is, shall be final and binding, and shall not be invalid, in consequence of inaccuracy, if the location of such division, the parties, and the sums awarded can be understood. No person shall remove his part of a divisional fence without giving three months’ notice to the adjoining proprietor, who may purchase such part, on paying its value, to be determined, if the parties cannot agree, by two of the selectmen of the town where it is situated. All damage done, either in particular enclosures or common fields, by cattle, horses, asses, mules, sheep, swine, or goats, when the fence is sufficient, shall be paid by their owners. ; The statute also provides that no person shall be entitled to a recovery for damages done in his enclos- ure through the insufficiency of his fence, unless such damages were done by swine or horses, or other crea- tures that go at large on the commons contrary to law, or by unruly cattle that will not be restrained by ordi- nary fences; or unless the owner of cattle shall put his cattle into, or voluntarily trespass on, his neighbor's en- closure; or unless it shall appear that, though part of the fence is deficient, the cattle broke and entered through a sufficient fence, —in which cases the owner THE LAW OF BOUNDARIES AND FENCES. 165 of the land may impound such creatures, and recover poundage and damages. When adjoining proprietors cannot agree in regard to the erection of a divisional fence, and there is a dwell- ing-house on the lot of one within one hundred rods of the dividing line, he may notify any two selectmen of the town in which said lot is situated, or, if it is in more than one town, then one from each, who shall give written notice to the parties of the time and place of a hearing in regard to such fence ; and the proprie- tors of said lot may, upon the terms named by the select- men, erect a better fence than is required by law, and the adjoining proprietor shall pay such part of the ex- pense as he would pay for the erection of an ordinary sufficient fence, but shall be allowed the value of his part of the existing divisional fence, appraised by the selectmen ; and the expense of maintaining such better fence, beyond that of an ordinary sufficient fence, shall be defrayed by the owner of said lot, who shall also pay the fees of the selectmen. Said selectmen shall make a written certificate of their doings, and leave a copy with each proprietor; and the party erecting the fence may recover of the other the amount to be paid by him, if not so paid within thirty days after the erection of such fence. The proprietors of land in any field, established as a common field in Connecticut, may meet by themselves or by their agents, and adopt regulations with respect to the fencing or occupying such common field; and they may choose a committee to take care of and man- age the affairs of the common field, and fence-viewers, 166 FARM LAW. who must be sworn to a faithful discharge of their duties. The committee of the field, or a committee ap- pointed for that purpose, are required to set out to each proprietor his proportion of the fence, and the place where it is to be made; and the proprietor is required by law to make and maintain it, and must observe the orders of the proprietors for the occupation of the common field. Where the line of a common field bounds upon a particular enclosure, one half of the fence must be made by the proprietors of the com- mon field, and the other half by the owner of the par- ticular enclosure. Where a common line fence has been established, it cannot be altered, except by a vote of the proprietors. And where any person shall purchase land. in a com- mon field, the committee appointed to take care of and manage the field have power to set out to such pur- chaser his proportion of the fence; and he shall be bound to maintain the same. Common fields are to be fenced in the same manner as is required in case of particular enclosures; and the committee of the com- mon field may agree in writing with the proprietors of any particular enclosure in respect to the line fences. The owners of the fence in the line of the common fence are required to set and keep up stakes, with the first two letters of their names on them, to distinguish their part of the common fence, under a penalty for neglect imposed by statute. The fence-viewers of any common field are required to inspect the fences of such field, and take care that they are kept in sufficient repair, whether such fences THE LAW OF BOUNDARIES AND FENCES. 167 belong to the proprietors of the field or the owners of the particular enclosure. Every person throwing his enclosure open to the commons shall, if required by any adjoining proprietor, first erect between said enclosure and the enclosure of each adjoining proprietor such sufficient divisional fence as he by law would be required to erect were his enclos- ure not so thrown opén, which divisional fence, so long as said enclosure remains open to the commons, but no longer, shall be maintained at the expense of the adjoining proprietor, and if any person so throwing his enclosure open shall have neglected to comply with the foregoing provisions, the party aggrieved shall be entitled to the remedies to the same extent as if the enclosure had not been thrown open to the commons. The statute further provides that every person who shall wittingly and unlawfully throw down or leave open any bars, gates, or fences belonging to any enclos- ure or common field shall pay to the party injured double damages, and a sum not exceeding five dollars, according to the nature and aggravation of the trespass. And any person who shall wilfully and maliciously cut, injure, deface, or throw down any fence on the land of another is made liable to be punished by fine not ex- ceeding one hundred dollars, or imprisonment in a com- mon jail not exceeding twelve months, or by both fine and imprisonment. For similar damage done to any fence in a cemetery or burying-ground the offender is liable to a fine not exceeding one hundred dollars, or imprisonment in the 168 FARM LAW. county jail not exceeding six months, or both fine and imprisonment. Owners of land adjoining railroads, who may have received compensation for fencing along the line of their land, are required by law to build and maintain a lawful fence on said line, or as near thereto as they conveniently can; and if they neglect to do so within sixty days after being notified to do so by the railroad company, such railroad company may build the same, and recover the expense thereof in an action of debt against the person so neglecting to build or maintain such fence. And every railroad company is required to construct and maintain good and sufficient fences on both sides of its railroad, except at such places as, in the opinion of the railroad commissioners, the erection and maintenance of the same shall be inexpedient or unnecessary, under a penalty prescribed by the statute. Such fences must be erected by all companies within twelve months after they enter upon and take posses- sion of the lands through which their railroads pass. OVERHANGING TREES. 169 CHAPTER XI. OVERHANGING TREES. Sect. 1. Right to pick Fruit from Overhanging Trees. . Fruit falling into Neighbor's Land. . Right to cut off Overhanging Branches. . Right to plant Shade-trees. . Trees Poisonous to Animals. om © bd Sect. 1. Right to pick Frutt from Overhanging Trees. WueEreE the farmer has a tree growing near a bound- ary line, even if the roots extend and grow into the land of his neighbor and derive nourishment therefrom, so long as the trunk remains on the farmer’s land the tree is his property, and he is entitled to all the fruit, not- withstanding some of its branches may overhang his neighbor’s land. If the farmer is prevented from reach- ing over and picking the fruit by the use of force by his neighbor, the farmer may have an action for assault and battery. In a New York case, a lady (whose father owned some fruit-trees) stood upon the division fence, and undertook to pick cherries from a limb of a tree which 1 Hoffman v. Armstrong, 48 N. Y. 201; Lyman »v. Hale, 11 Conn. 177; Skinner v. Wilder, 38 Vt. 115; Holder v. Coates, 1 Moody & M. 112. 2 Hoffman v. Armstrong, 48 N. Y. 201. 170 FARM LAW. overhung the neighbor’s land. The neighbor forbade her, and on her persisting, attempted to prevent her by force, and did her a personal injury, for which he was obliged to pay her, through the courts, one thousand dollars. Sect. 2. Fruit falling into Neighbor's Land. If the farmer's fruit falls into his neighbor's land, a question may arise as to his right to go upon it to recover the fruit. It seems that the law on this point is not settled, but the farmer would probably have an implied license in law to enter, if possible, without any damage to his neighbor. Sect. 3. ight to cut off Overhanging Branches. The adjacent owner may cut off the branches or roots of trees up to the line of his land; but, if he use them, he will be obliged to pay the owner of the tree what they were worth. Where a tree stands upon the boundary line between adjoining owners, so that its body extends into the land of each, they own the tree and fruit in common, and neither is at liberty to cut the tree without the con- sent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property.? 4 Procter v, Adams, 113 Mass. 376; Richardson v, Anthony, 12 Vt. 273. 2 Griffin », Bixby, 12 N. H. 454; Dubois v. Beaver, 25 N. Y. 123. OVERHANGING TREES. 171 SECT, 4. Right to plant Shade-trees. Every farmer may plant shade-trees upon his land, or cover it with a thick forest, and his neighbor, who has a house near the boundary line, cannot complain because they make his house damp and unhealthy. He has no right to cut them, as the injury caused by the shade-trees is what is termed in the law damnum absque injurias Sect. 5. Trees Poisonous to Animals. The farmer, however, is responsible for any damage caused by a tree poisonous to animals, whose branches hang over the neighbor’s fence and poison his cattle. But if cattle break through a fence and escape to a poisonous tree which is somewhat distant from the boundary line, the farmer will not be answerable, the cattle being trespassers.? 1 Bliss v. Ball, 99 Mass. 597. 2 Crowhurst v. The Burial Board of the Parish of Amersham, 4 Ex. Div. 5; Bush v. Brainard, 1 Cow. 78. 172 FARM LAW. CHAPTER XII. WATER RIGHTS. Sect. 1. Of the Right to use the Water. 1 2. Diversion of Water. 8. Surface Water and Drainage. 4, Diversion of Water beneath the Surface. 5. Mill Privileges. 6. Corruption or Pollution of Water. 7. Easement of Drip. 8. Lands bounded on Navigable and Unnavigable Waters. Sect. 1. Of the Right to use the Water. Ir is a general principle that every owner: of land upon a natural stream of water, has a right to use the water for any reasonable purpose not inconsistent with a similar right in the owners of the land above, below, and opposite to him. He may take the water to sup- ply his dwelling, to irrigate his land, or to quench the thirst of his cattle; to use it for manufacturing pur- poses, such as the supplying of steam-boilers, or the running of water-wheels or other hydraulic works, so long as such use does not sensibly and injuriously affect its volume. But this is a mere privilege running with the land, not a property in the water itself. 1 Gerrish v. Newmarket Manuf. Co., 30 N. H. 478, 483; Elliot v. Fitchburg R. R. Co., 10 Cush. 191; s. c. Bigelow’s L. C. Torts, 509 ; Seeley v. Brush, 35 Conn. 419 ; Chatfield v. Wilson, 31 Vt. 358; Dil- ling v. Murray, 6 Ind. 324. WATER RIGHTS. 173 Where the stream is small, and does not supply water more than sufficient to answer the natural wants of the different proprietors living on the stream, none of the proprietors can use the water for either irriga- tion or manufacturing; but for domestic purposes and for watering stock one proprietor will be justified in consuming all the water. In a Massachusetts case, Chief Justice Shaw! states the general doctrine in the following words: “Every person through whose land a natural watercourse runs has a right, publict juris, to the benefit of it, as it passes through his land, to all the useful purposes to which it may be applied; and no proprietor of land on the same watercourse, either above or below, has a right unreasonably to divert it from flowing into his premises, or obstruct it in passing from them, or to corrupt or destroy it. It is inseparably annexed to the soil, and passes with it, not as an easement nor as an appur- tenance, but as parcel. Use does not create it, and disuse cannot destroy or suspend it. Unity of posses- sion and title in such land with the lands above or below does not extinguish or suspend it.” Twenty years’ use adverse to the right of another, will give the person so using the stream the right to continue the use, regardless of the other’s rights. Sect. 2. Diversion of Water. Every farmer who owns lands situated upon a stream has the following rights :— 1 Johnson v. Jordan, 2 Met. 239. 174 FARM LAW. 1st. To the natural flow of the stream. 2d. That it shall continue to run in its accustomed channel. 3d. That it shall flow upon his land in its usual quantity, natural place, and usual height. 4th. That it shall flow off his land upon the land of his neighbor below, in its accustomed place, and at its usual level. These rights he has as an incident to the property in his land, and he cannot be deprived of it by grant or prescription.t If any farmer shall make any change in the natural flow of a stream to the material injury of any othér owner situated upon it, or by any interference shall prevent the stream from flowing as it was wont to flow, he is responsible for the damage he may occa- sion. These rights are subject to the privilege of each one of the farmers to make a reasonable use of the water upon his own land, while it is passing along the same. It matters not what the source of the water may be, whether it be back water or the flowage of the same, or the water of another stream. Still a diver- sion of a stream may be made by the farmer, if it be returned to its natural channel before it leaves his premises.? 1 Newhall v. Ireson, 8 Cush. 595; Howell v. McCoy, 3 Rawle, 256 ; Davis v. Winslow, 51 Me. 264, 291; Chatfield v. Wilson, 27 Vt. 670. 2 Tolle v. Correth, 31 Tex. 362. WATER RIGHTS. 175 Sect. 3. Surface Water and Drainage. By surface water is meant water, which flows upon the surface of land, not being gathered into either lakes, ponds, or streams of running water. The greatest diffi- culty is in distinguishing between surface water as such and running streams; and perhaps the best way to dis- tinguish between them is to ascertain clearly what a watercourse is. A watercourse is a channel or canal for the convey- ance of water, made by the general superficies of the surrounding land, from which the water is collected into one channel; or it may be artificial, as in the case of a ditch or other artificial means resorted to, to carry water from low lands from which it will not flow in con- sequence of the natural formation of the surface of the surrounding land. It flows in a definite channel, hav- ing a bed and sides, or banks, and usually discharges itself into some other stream or body of water. The water in the channel need not flow continually, for there are many watercourses which are sometimes dry, but they must have a well-defined and substantial existence. A farmer has a right to appropriate the surface water running in no defined channel, even though it should prevent the flow of the same into a neighbor- ing stream.! When two fields are adjacent, and one is lower than the other, the owner of the upper field has a legal right to have the water that falls upon his land 1 Gannon v, Hargadon, 10 Allen, 106; Curtis v. Ayrault, 47 N. Y. 78, 78; Livingston v. McDonald, 21 Iowa, 166. 176 FARM LAW. flow off from the same upon the land below. Hence it is held that the owner of the lower field has no right to erect embankments whereby the natural flow of the water from the upper field may be stopped; nor has the owner of the upper field a right to make any excava- tions or drains by which the flow of water is diverted from its natural channel and a new channel made on the lower ground; nor can he collect into one channel -- waters usually flowing off into his neighbor’s fields by several channels, and thus increase the rush upon the lower fields! This is the law in Pennsylvania, Mis- souri, North Carolina, Illinois, Ohio, California, Iowa, and Louisiana. The courts of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Indiana, Minnesota, Kansas, and Wiscon- sin have rejected the above doctrine, and hold that the lower proprietor may, for the improvement of his estate, or to make erections thereon, lawfully fill up the low places on his land, although by so doing he obstructs or prevents the surface water from passing thereto from the premises above, and thereby injures the upper pro- prietor.? Thus, where a railroad company erected an embankment on its right of way running across a swampy piece of land through which the surface water soaked or percolated in the usual way, and 1 Hayes v. Hickleman, 68 Penn. St. 324; Tootle v. Clifton, 22 Ohio St. 247; Hicks v, Silliman, 93 Ill. 255; Ogburn v. Connor, 46 Cal. 346 ; McCormick v. Kansas City R. R. Co., 70 Mo. 359. ° Barkley v. Wilcox, 86 N. Y. 140; Wheeler »v. City of Worcester, 10 Allen, 591; Buffum v, Harris, 5 R. I. 243; Chatfield v. Wilson, 28 Vt. 49. WATER RIGHTS. 177 im times of great rains the water gathered in such quantities upon such swampy land as to affect adjoin- ing dry lands, which would have flowed off down the general slope of the land if it had not been for such em- bankment, and where a culvert thereunder would have prevented the obstruction, it was held that the com- pany had the right to erect the embankment, and were not liable for damages caused thereby. As stated by Chief Justice Bigelow,? “the obstruc- .. tion of surface water, or an alteration in the flow of it, affords no cause of action in behalf of a person who may suffer loss or detriment therefrom, against one who does no act inconsistent with the due exercise of dominion over his own soil.” The law has always recognized a wide distinction be- tween the right of an owner to deal with surface water falling or collected on his land, and his right in the water of a natural watercourse. In such water, before it leaves the land and becomes part of a defined water- course, the owner of the land is deemed to have an absolute property, and he may appropriate it to his exclusive use, or get rid of it in any way possible, pro- vided he does not collect it by drains or other artificial means and discharge it upon the land of his neighbor to his injury. 1 O’Connor v. Fond du Lac, &c. R. R. Co., 5 Am. & Eng. R. R. Cas. 82. 2 Gannon v. Hargadon, 10 Allen, 106. 12 178 FARM LAW Sect. 4. Diversion of Water beneath the Surface. Tf a farmer, without any intention to injure his neighbor, and while making use of his land for any suitable and lawful purpose, cuts off, diverts, or de- stroys the use of an underground spring or current of water which has no known and defined course, but has been accustomed to penetrate and flow into the land of his neighbor, he is not liable to an action for the diver- sion or stoppage of such water. He may therefore drain his land, dig a well, open and work a mine or quarry, although by so doing he may cut off the supply of water to the springs and wells in the vicinity.1 The only rem- edy which the neighbor has in such case is to recover the water by sinking a deeper well in his own land. In New Hampshire? the law is different, and the doc- trine prevails that the right to cut off water beneath the surface depends upon the reasonable use of the soil. However, where the course of a subterranean stream is well known, as is the case of many which run into the ground, pursue for a short space a subterraneous course, and then emerge again, the owner of land lower down has the same rights as he would have in the stream flowing entirely above ground3 The owner of the soil owns all the water percolating 1 Chase v, Silverstone, 62 Me.175; Wilson ». City of New Bedford, 108 Mass. 261; Frazier v. Brown, 12 Ohio St. 294 ; Hanson v. McCue, 42 Cal. 308; Clark v. Conroe, 38 Vt. 469; Bliss v. Greeley, 45 N. Y. 671. 2 Swett v. Cutts, 50 N. H. 439. 8 Wheatley v. Baugh, 25 Penn. St, 528. WATER RIGHTS. 179 through the soil, and no one can acquire an adverse right therein except by contract.? Sect. 5. Mill Privileges. A farmer who has a natural stream of water flowing through his land has a right to a reasonable use of the water for mills or other purposes, whatever may be the effect upon the owners of lands below; and is not liable to an action for obstructing and using the water for his mill, if it appears that his dam is only of such magni- tude as is adapted to the size and capacity of the stream and to the quantity of water usually flowing therein, and that his mode of using the water is not unusual or unreasonable, according to the general custom of the country in cases of dams upon similar streams.? For example, where the defendant was the owner and occupant of a mill standing on his land above the land of the plaintiffs, who were riparian owners on the same stream, and had, in operating his mill and the works contained in it, used the water of the stream by means of a dam erected across it, and the dam was of a magnitude adapted to the size of the stream, and the mode of using it was usual and reasonable, accord- ing to the custom in like cases, the defendant was held not liable to the plaintiffs, though he prevented them 1 Whetstone v. Bowser, 29 Penn. St. 59. 2 Hayes v. Waldron, 44 N. H. 580; Merrifield v. City of Worces- ter, 110 Mass. 216; Davis v. Getchell, 50 Me. 602; s.c. Bigelow’s L. C. Torts, 506; Pool v. Lewis, 41 Ga. 162; Timm v, Bear, 29 Wis. 254; Clinton v. Myers, 46 N. Y. 511. 180 FARM LAW. from deriving such benefit as they would otherwise en- joy from the existence of the stream. In many of the States statutes have been enacted encouraging the erection of mills, by authorizing their owners and occupants to flow the lands of other per- sons by paying such damages as may be assessed in the mode prescribed. Sect. 6. Corruption or Pollution of Water. Every owner of land through which a stream of water flows is entitled to the use of the water in its natural state, and any one who renders the water un- wholesome, offensive, or unfit for the purposes for which it is used is liable to an action for damages, unless he has acquired, by grant or prescription, an adverse right against the lower or adjoining owner.? Erecting a cesspool or depositing manure or obnox- ious substances near the stream would be such a wrong. But an action for damages is not the only remedy for the unlawful pollution of a stream, as the injured pro- prietors may obtain further relief by injunction if the grievance is continuous.* 1 Springfield v. Harris, 4 Allen, 494, 2 Dwight Printing Co. v. Boston, 122 Mass. 583; Wheatley v. Chrisman, 24 Penn. St. 298. 8 Ottawa Gas Co. v. Thompson, 39 Ill. 601; Brown v. Illius, 25 Conn. 583. “ Wilts v. Swindon Water Works, L. R. 9 Ch. App. 451. WATER RIGHTS. 181 Sect. 7. Easement of Drip. When a farmer builds a house on the line of his lot, with eaves projecting upon his neighbor's land, so as to throw thereon the water from the roof, it is a manifest encroachment upon and appropriation of the neighbor's lot, to the extent, at least, of the projection; but a right to make this encroachment may be acquired by twenty years’ acquiescence on the part of the neighbor.! But it has been held that the flow of water for twenty years from the eaves of a house cannot give a right to the neighbor to insist that the house shall not be pulled down or altered so as to diminish the quan- tity of water flowing from the roof? So the flow of water from a drain for twenty years, for the purposes of agricultural improvements, will not enable the far- mer to preclude his neighbor from altering the level of his drains for the greater improvement of his land. Sect. 8. Lands bounded on Navigable and Unnavigable Waters. The owner of lands bounded upon the ocean, or navi- gable rivers wherein the tide ebbs and flows, has title to high-water mark, the land lying between high and low water mark belonging to the State as trustee for the public. But in Maine, New Hampshire, and Mas- 1 Martin v. Simpson, 6 Allen, 102; Simonds v. Polland, 53 Vt. 343; Underwood v. Waldron, 33 Mich. 232; Bellows v. Sackett, 15 Barb. 96. 2 Wood v. Wauld, 3 Exch. 748, 778. 182 FARM LAW. sachusetts, by force of a very early law,! such land is owned by the adjoining proprietors, subject to the pub- lic easement, and not exceeding one hundred rods below high-water mark. But as to streams not navigable which run by the side of a man’s farm, the owner has title to the centre of the stream.? If the same person be owner of the lands on both sides of the stream, he owns the whole stream to the extent of the length of his lands upon it. And should the river suddenly change, as by freshet, the owner into whose land it cuts is entitled to the old boundary line as it existed before the freshet. 1 Ordinance passed by Colonial Legislature of Mass. Colony in 1641, and accepted as the law in the other two States. 2 Hathorn v. Stinson, 10 Me. 238 ; State v. Gilmanton, 9 N. H. 461; Hatch v. Dwight, 17 Mass. 289; Fletcher v. Phelps, 28 Vt. 257. THE RIGHT TO COLLECT SEA-WEED. 183 CHAPTER XIII. THE RIGHT TO COLLECT SEA-WEED. SEA-WEED cast and left upon the shore between ordi- nary high and low water mark belongs to the State, and in this country the people have the absolute pro- prietary interest in the same.! In Massachusetts, Maine, and New Hampshire, by a provision and ordinance passed in 1641, by the Colonial Legislature of the Massachusetts Colony, where land is situated upon salt water where the sea ebbs and flows, its proprietor owns the shore to low-water mark subject to the public easement and not extending one hundred rods below high-water mark, and as an incident to the ownership of the shore or flats sea-weed cast up by the waves belongs as an appurtenant to the owner of the soil, and the right to take it may be the subject of sale and conveyance, separate from the soil itself? 1 Mather v. Chapman, 40 Conn. 382; Peck ». Lockwood, 5 Day, 22; Arnold v. Mundy, 1 Halst. (N. J). 1, 12; Phillips v. Rhodes, 7 Met. 322. The phrase “privilege of the shore,” employed in a statute, includes the right to take gravel and sea-weed. Cushing v. Worrick, 9 Gray, 382; Ripley v. Knight, 123 Mass. 515. 2 Anthony v. Gifford, 2 Allen, 549; Barker v. Bates, 13 Pick. 255 ; Emans v. Turnbull, 2 Johns. 313. ‘‘ Any person may take and carry away kelp or other sea-weed be- tween high and low water mark, whilst the same is actually adrift in 184 FARM LAW. Sea-weed, kelp, and other marine plants, when de- tached from the bottom of the sea and thrown on the shore or beach, become vested in the owner of the soil. But these marine products do not become the property of the riparian proprietor until they are cast on the land or shore, so that they rest there and may be justly said to be attached to the soil. So long as they are afloat, and driven or moved from place to place by the rising tide, it is wholly uncertain where they may find a resting-place ; and no one can claim ownership in them as appertaining to the particular part of the shore or beach which belongs to him. And this is true whether they are wholly afloat, so that they do not come in contact with the bottom, or only partially so, or to such an extent that they occasionally, by the mo- tion of the waves or the rise of tide, touch or rest on the beach. If sea-weed is deposited by storms or tides upon the upland above high-water mark, it belongs to the owner tide-waters ; but for such purpose no person shall enter on upland or on lawfully enclosed flats without the consent of the owner or lawful occupant thereof. The provisions of this section shall not apply to any city or town in which the subject is regulated by special act of the legislature.” Pub. Stats. Mass., ch. 9, § 106. “If any person shall collect or carry away from any salt marsh or flats, any flats-weed or any sea-weed thrown thereon by the sea or tide, without leave of the owner of such marsh or flat, he shall be fined not exceeding ten dollars for each offence. If any person shall collect and carry away, or pile up for the purpose of carrying away, any sea- weed or rock-weed from the seashore below high-water mark, between daylight in the evening and daylight in the morning, he shall be fined not exceeding fifty dollars. If any person shall pile, for the purpose of hauling away, any sea-weed or rock-weed below high-water mark, he shall be fined not exceeding ten dollars.” Gen. Stats. N. H., ch. 281, §§ 9-11, THE RIGHT TO COLLECT SEA-WEED. 185 of the upland, the riparian proprietor, although he may leave it ungathered.! In the sea-weed there is no title until it is some- where deposited ; while it is floating with the tide it belongs to him who first appropriates it. The right to take sea-weed from the land or beach of another is not an easement, but a right to take a profit in the soil, and cannot be acquired by custom.? A sale of all the sea manure that may be landed on a certain beach during one year conveys no interest in the beach.? In New Hampshire it was decided that a custom for the inhabitants of a town to haul sea-weed upon the plaintiff’s land, and there deposit it, and afterwards take itaway at pleasure, was not unreasonable or void.* Where land adjacent to the sea was conveyed by a deed which reserved the privilege “ of piling up sea- weed on the shore,” it was held that the right re- served was to pile the sea-weed upon the upland, and not below high-water mark, where it would be swept away by the tide.® 1 Barker v. Bates, 18 Pick. 255; Church v. Meeker, 34 Conn. 428; Clement v. Burns, 43 N. H. 621; Kenyon v. Nichols, 1 R. I. 106; East Hampton v. Kirk, 68 N. Y. 459; s. c. 6 Hun, 257. 2 Hill v. Lord, 48 Me. 83; Hampton v. Kirk, 68 N. Y. 459; 84 N. Y. 215; Clement v. Burns, 43 N. H. 609. 3 Parsons v. Smith, 5 Allen, 578. 4Knowles v. Dow, 22 N. H. 387. 3 Mather v. Chapman, 40 Conn. 382.