UMASS/AMHERST 
 
 31EDt,t.DD5aDm53 
 
LIBRARY 
 
 OF THE 
 
 MASSACHUSETTS 
 
 AGRICULTURAL 
 
 COLLEGE 
 
 so U R C E na SS.._SocL.-^T. PrDTOfltlO^./^r ic 
 
 73 
 
 B27 
 V.2 
 
PUBLICATIONS 
 
 OF THE 
 
 laassacljusetts .Societg for tije promotion of Agriculture, 
 
 FARM LAW: 
 
 A TREATISE 
 
 The Legal Eights and Liabilities 
 
 OF FARMERS, 
 
 EDMUND H. BENNETT, LL. D., 
 
 DEAN OF BOSTON UNIVERSITY SCHOOL OF LAW; 
 
 FORMERLY MEMBER OF THE STATE BOARD 
 
 OF AGRICULTURE. 
 
 SALEM, MASS. : / 
 
 obs?:rveii steam book axd.job pkixt. 
 1884. 
 
PUBLICATIONS 
 
 [assacfjusetls Socictg for t|)e promotion of Slsriculture, 
 
 FARM LAW: 
 
 A TREATISE 
 
 The Legal Rights and Liabilities 
 
 OF FARMERS. 
 
 EDMUND H. BENNETT, LL. D, 
 
 DEAN OF BOSTON UNIVERSITY SCHOOL OF LAW; 
 
 FORMERLY MEMBER OF THE STATE BOARD 
 
 OF AGRICULTURE. 
 
 SALEM, MASS.: 
 
 OBSERVER STEAM BOOK AND JOB PRIKT, 
 18 84. 
 
NOTICE. 
 
 The substance of the following pages was originally delivered 
 as a lecture before the Massachusetts State Board of Agricul- 
 ture, at Hingham, Dec. 5, 187S. Some additions have since 
 been made, and a table of contents has been added. The 
 Massachusetts Society for Promoting Agriculture, believing 
 that it contains much that is of general interest and value, 
 have secured the permission of its author to republish it for 
 distribution among the Farmers of the State. 
 
CONTENTS. 
 
 CHAPTER L 
 
 HOW TO BUY A FARM 9 
 
 CHAPTER II. 
 
 HOW FAR THE FARM EXTENDS 12 
 
 CHAPTER III. 
 
 WHAT A DEED OF A FARM INCLUDES. 15 
 
 CHAPTER ly. 
 
 HIRING HELP . . .18 
 
 CHAPTER V. 
 
 RIGHTS IN THE ROAD 22 
 
 CHAPTER VI. 
 
 WAYS OVER THE FARM . . .24 
 
 CHAPTER VII. 
 
 RAILROADS THROUGH FARMS. 27 
 
 CHAPTER VIII. 
 
 AS TO FARM FENCES. 30 
 
 CHAPTER IX. 
 
 IMPOUNDING CATTLE. 3fi 
 
 CHAPTER X. 
 
 FARMER'S ANIMALS. . . 38 
 
 CHAPTER XI. 
 
 ABOUT DOGS 42 
 
8 CONTENT?;. 
 
 CHAPTER XII. 
 
 LIAIULITY FOR HIS INIEX. 46 
 
 CHAPTER XIII. 
 
 ABOUT FIRES. . . . . . • 48 
 
 CHAPTER Xiy. 
 
 WATKR RIGHTS AND DRAINAGE . 49 
 
 CHAPTER XV. 
 
 TRESTASSING ON THE FARM 52 
 
 CHAPTER XVI. 
 
 OVERHANGING TREES 66 
 
 CHAPTER XVII. 
 
 UKMAHK OF TRAPS 58 
 
CHAPTER I. 
 
 HOW TO BUY A FARM. 
 
 In an article upon the legal rights and duties of farmers, the 
 first inquiry naturally is, how to buy a farm. 
 
 It is quite generally known that a mere oral bargain for a 
 farm is not binding in law upon either party ; but it may not 
 be so well understood that an offer to sell a farm for a given 
 price, even though it be by letter or other similar writing, is 
 not binding upon the proposer until actually accepted by the 
 buyer, and he has also agreed to take it, and pay the price 
 stated in the offer ; therefore the owner may retract his offer 
 to sell at any time before it is accepted and he is notified there- 
 of. And although, in making his offer to sell, he should ex- 
 pressly give you a certain number of days in which to decide 
 whether to take it or not, he may, nevertheless, change his 
 mind in the mean time, if you have not accepted, and sell to 
 another who offers a higher price, even before the given time 
 has expired ; and you would have no legal redress for your dis- 
 appointment. Unless indeed you had taken the precaution to 
 have your offer under seal, or have paid some "■consideration" 
 for the refusal of the farm during the time given. 
 
 Nay, more ; although you had fully made up your mind to 
 take the farm, but had not notified the owner of that fact, and 
 should go to great trouble and expense in buying stock, tools, 
 agricultural implements, etc., to carry on the farm, and should 
 even move your family there to take possession, the owner 
 might even then refuse to sell, and you would have no legal 
 remedy either to compel him to convey, or for the expenses 
 you had thus incurred relying upon his keeping his word. In 
 
10 FARM LAW. 
 
 some states, although the l)argain for a farm be oral, yet if the 
 purchaser has paid part of the price, and has taken possession 
 and incurred expense in making improvements, a court of 
 equity will compel the owner to make a conveyance, as he ought 
 to do without such compulsion; but this may not be universally 
 so, and is always an expensive and dilatory remedy; the safer 
 way in such cases is to take a bond for a deed, as it is called. 
 An ordinary "refusal" of property, as it is termed, is a danger- 
 ous thing to rely upon, unless you are dealing with a man 
 whose "word is as good as his bond," and they are very scarce ! 
 And, if a pai-ticular time is given you in which to accept an 
 offer to sell, you should be particular to signify your acceptance 
 strictly within the tine, and to do so entirely unconditionally 
 and without any qualifications, but exactly as it was made. 
 Ill one instance a man had ten days in which to make up his 
 mind, and on the niglit of the last day, about half-past eleven 
 at night, he called at the owner's house, after he was abed and 
 asleep, and said he would take the farm. The owner refused 
 to get up, or to take the money the next day, and the buyer 
 tried to get the farm by a suit-at-law ; but it was decided that 
 he came too late on the last day, and he not only lost his trade, 
 but had to pay the costs of his suit. In another case A wrote 
 to B he would sell him his farm for three thousand dollars 
 casli. B wrote back immediately he would take it, if A would 
 make out liis deed and send it to a lawyer for examination, 
 and, if all right, the lawyer would pay him his three thousand 
 dollars ; but it was decided that B had not duly accepted A's 
 ofter, because he did not enclose the cash in his letter, but 
 asked A to carry liis deed to a third person for examination, 
 and consequenlly that A might withdraw and sell to another 
 party. 
 
 If tlie negotiations for a farm are by letters, some peculiar 
 comi)lications may arise. 
 
 It is generally understood that when a man ofiers to sell an- 
 other a farm l)y letter, the bargain is completely closed the 
 moment tlie other deposits his letter of acceptance in his post- 
 office, duly directed to the former. After tliat time neither 
 
HOW TO BUY A FARM. 11 
 
 party is at liberty to change his mind or retract his steps. And 
 this is said to he so altliough the letter miscarries, or the mail 
 is robbed, and so the seller never hoars that, his proposition 
 has been accepted at all. 
 
 If therefore, in such a case, tired of waiting for a reply, he 
 should sell the farm in good faith to another, the first party 
 might sue him for non-fulfilment of his contract with him, and 
 perhaps compel him to pay heavy damages. Whereas, if he 
 should refuse to convey the farm to the second purchaser, after 
 he had learned that the first wished to claim it, the last might 
 also bring suit, and so the poor man is literally "between two 
 fires." This seems veiy strange, but 1 fear such is the gener- 
 ally established rule. As the lawyers say: Ita lex scripta est. 
 If it be so, it is, like some other things written, "hard to be 
 understood!" Another singular situation might arise from the 
 principle above stated. Suppose the would-be buyer changes 
 his mind immediately after liis letter of acceptance has been 
 sent off, and telegraphs the owner that he decHites to take the 
 farm, and then his letter of acceptance arrives the next day, 
 what then, — can the owner hold him to take it ? 
 
 But, supposing the grantor is willing to give you a deed, it 
 must, in many states, have the seal of the grantor at- 
 tached, or it is not sufficient. A scroll of the pen, or the letters 
 L. S., are sufficient in some states, but it is always safe to have 
 a seal. It may not be as well understood that it is not every- 
 where necessary that a deed should be witnessed or acknowl- 
 edged, and recorded. These last two requisites may be essen- 
 tial to make the deed valid against the creditors of the grantor, 
 or any one who subsequently bought the farm without knowing 
 of the prior deed ; and they are always so important they 
 should never be neglected ; and my first advice to you is, that, 
 if you have any unrecorded deeds among your papers, you at- 
 tend to that duty forthwith. 
 
12 FARM LAW 
 
 CHAPTER 11. 
 
 HOW FAR THE FARM EXTENDS. 
 
 Having once obtained a sufficient deed, the next question 
 seems to be liow far the farm extends, or its proper boundaries. 
 Three circumstances have more or less weight in determining 
 this question : 
 
 1 The number of acres stated in tlie deed ; 
 
 2 The length of the boundary lines running around the farm; 
 
 3 The visible monuments, such as trees, rocks, stake and 
 stones, described as corners of the farm. 
 
 Of these three, the last is by far the most important, and, in 
 case of any ditference between them, controls all the rest. If 
 the boundary lines are described as beginning at a certain 
 stake and stones, thence to a certain tree, thence to a particular 
 rock or stump, and so quite around the farm, the deed includes 
 all the land inside of those monuments, although it be many 
 more acres than the deed calls it, and, on the other hand, it 
 will really convey no more, although the number of acres with- 
 in such bounds be much less than stated in the deed. So, if 
 the monuments named are fixed and definite, they control both 
 the course and the length of the side-lines mentioned in the 
 deed; and if these lines be called a hundred feet long on every 
 side, but the trees, rocks, stake and stones described as corners, 
 are only ninety feet apart, the buyer will acquire a lot only 
 ninety feet square, and not a hundred feet ; and, vice versa, if 
 the lines are described as only ninety feet long, but the given 
 corners are a hundred feet from each other, the deed covers a 
 lot a hundred feet square. 
 
 The quantity of acres mentioned is the very weakest means 
 of knowing the real extent of the farm, although they be stated 
 positively, and not under the elastic phrase of ''more or less," 
 as is so commonly done ; and, generally speaking, a deficiency 
 in number of acres gives the buyer no remedy against the 
 seller for a return of any part of the purchase money, unless. 
 
HOW FAR THE FARM EXTENDS. 13 
 
 perhaps, when it was clearly bought at the rate of so much per 
 acre. In one case the bargain was for a well-defined tract, 
 followed by the words "containing 600 acres." In fact, it con- 
 tained only 421 acres, but the buyer had'no redress for the 
 difference. So much more important are the known monu- 
 ments and boundaries than the number of acres stated, that, 
 even if the vendor fraudulently and intentionally overstates the 
 quantity, in order to deceive the purchaser, the latter has no 
 redress, if so be the other truly pointed out the boundaries in 
 making the trade ; whereas, a fraudulent statement of the 
 boundaries would release the purchaser from the sale, although 
 the farm contained as many, or even more acres, than the 
 parties called it in making the bargain. 
 
 And, while speaking of fraudulent statements, perhaps I 
 ought to warn you that fraudulent misrepresentations by the 
 seller of a farm, as to how much hay or wood it will cut, how 
 much stock it will keei>, how much it had cost, or how much 
 somebody else had offered for it, though made with intention 
 to deceive you into a foolish trade, are not in law sufficient to 
 excuse you from the purchase, or give you any redress, when you 
 find out the deception. Such and other similar statements are 
 considered in law merely as "dealer's talk," which, though 
 not to be commended in the code of morals, the law takes 
 little or no notice of. On the other hand, if he should falsely 
 state that the farm had cut fifty tons of hay, when he knew it 
 had not, his deception would make him liable ; and the line is 
 so thin between actionable fraud and tlie contrary, that experi- 
 ments in that direction are rather dangerous. It is not whole- 
 some to always dwell in the twilight. 
 
 If a boundary line runs to a tree, rock, stump, or other 
 similar object, it ordinarily goes to the center of the object; rf 
 it runs by a wall or fence, it passes along the middle of it, and 
 not by the side, which, in a " Virginia fence," or a ditch six 
 feet wide, might be of some consequence. Such a fence, six 
 or seven feet wide, is a lawful fence. 
 
 So if a farm bounds by or on a brook, river, stream, etc., it 
 usually extends to the middle of the current ; not always to 
 
14 FARM LAW. 
 
 the middle of the ivater, but geiiei-ally to the thread of the 
 stream,— ftc? filtim aqufc. If there be any islands between 
 that center line and the bank, they belong to the owner of the 
 main bank. If an island forms in the bed of an unnavigable 
 river, directly in the channel, so as to lie [)artly on each side 
 of the original thread of the mver, such island will be divided 
 between the opposite proprietors, exactly upon the line of the 
 former thread of the stream at that place. 
 
 Whereas, if the course of such a river changes, and cuts otf 
 a point of land on one side, thus making an island, such 
 island still belongs to the original proprietor ; and in such case, 
 if the old bed of the river, being gradually deserted by the 
 current, (ills up, and new land is formed, such newly formed 
 land is to be divided between the opposite owners, as al)0ve 
 staled, notwithstanding the island formed by the " cut-off" is 
 not divided. 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 ordinarily owns 
 to the centre of the current ; on the other hand, if it be a 
 large, natural pond or lake, the line stops at the low-water 
 mark, on the shore, and does not extend into the pond ; the 
 public having rights in such large bodies of water as are use- 
 ful for navigation, boating, sailing, and the like. 
 
 As to farms bounding on the seashore, some different pro- 
 visions exist in some states. 
 
 That strip of land between high and low water mark, 
 generally termed " the flats," is a frequent subject of conten- 
 tion ; and the question is often made to whom it belongs, — 
 whether to the owner of the upland, or to the public. In 
 many states the private ownership in such farms extends only 
 to " highwater mark," and the public have rights in the belt 
 between high and low water mark, so that if sea-weed, or 
 other such thing be tiirown up there by the tide, any one may 
 take possession of it, and he who first gathers it has an 
 absolute right to it. By force of a very early law in Massa- 
 chusetts, and some other sea-coast states, if a deed describes 
 the farm as bounding " by the sea," '• by the salt water," 
 
HOW FAR THK FARM EXTENDS. 
 
 15 
 
 " bay, harbor, cove, creek, stream, river, or tide-water/' it 
 generally includes the whole flats down to low-water mark (if 
 not over a hundred rods), including the exclusive right to 
 gather the sea-weed, or other such things washed up thereon 
 by the tide. And no custom among the people in the neigh- 
 borhood to collect sea-weed in such places, is of any validity 
 in law. 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 give any right to the flats. 
 
 While yet again (such are the niceties of the law), if the 
 phrase of the deed is " to the beach or sea," " to the sea-shore." 
 '" to the sea or flats," the grantee owns down to low-water 
 mark, flats and all. Tn view of such nice and subtle distinc- 
 tions (though founded on better reasons than are apparent)^ 
 one is tempted to exclaim with the Earl of Warwick, in 
 Shakespeare's Henry YI.: — 
 
 "Between two hawks, which flies the higher pitch; 
 Between two dogs, wliich hath tlie deeper mouth; 
 Between two horses, which doth bear him best; 
 Between two girls, which hath the merriest eye ; 
 I have, perhaps, some shallow spirit of judgment, — 
 But in these nice sharp quillets of the law, 
 Good faith, I am no wiser than a daw. " 
 
 CHAPTER HI. 
 
 WHAT A DEED OF A FARM INCLUDES. 
 
 Of course every one knows it conveys all the fences stand- 
 ing on the farm ; but all might not think it also included the 
 fencing-stuff, posts, rails, etc., which had once been used in 
 the fence, but had been taken down and piled up for future 
 use again in the same place. But new fencing material, just 
 bought, and never attached to the soil, would not pass. So 
 
16 FARM LAW. 
 
 piles of liop-polcs stored away, if once used on the land and 
 intended to be again so used, have been considered a part of it; 
 but loose boards or scaffold-poles merely laid across the beams 
 of the barn, and never fastened to it. would not be, and the 
 seller ot the farm might take them away. Standing trees, of 
 course, also pass as part of the land ; so do trees blown or cut 
 down, and still left in the woods where they fell, but not if 
 cut, and corded up for sale ; the wood has then become 
 personal property. 
 
 If there be any manure in the barnyard, or in the compost 
 heap on the field, ready for immediate use, the buyer ordina- 
 rily, in the absence of any contrary agreement, takes thai also 
 as belonging to the farm, though it might not be so, if the 
 owner had previously sold it to some other party, and had 
 collected it together in a heap by itself, for such an act might 
 be a technical severance from the soil, and so convert real 
 into personal estate ; and even a lessee of a farm could not 
 take away the manure made on the place while he was in 
 occupation. Growing crops also pass by the deed of a farm, 
 unless they are expressly reserved ; and, when it is not 
 intended to convey those, it should be so stated in the deed 
 itself; a mere oral agreement to that efiect would not be, in 
 most states, valid in law. Another mode is to stipulate that 
 possession is not to be given until some future day, in which 
 case the crops or manure may be removed before that time. 
 
 As to the buildings on the farm, though generally mentioned 
 in the deed, it is not absolutely necessary they should be. A 
 deed of land ordinarily carries all the buildings on it belong- 
 ing to the grantor, whether mentioned or not ; and this rule 
 includes the lumber and timber of any old building which has 
 been taken dov/n, or blown down, and been packed away for 
 future use on the farm. 
 
 But if there be any temporary buildings on the farm built 
 by some third person, with the farmer's consent that they 
 should belong to the builder, as between the parties these are 
 personal property ; and some think the deed would not 
 convey these, since such l)uildings are personal property, 
 
WHAT A DEED OF A FARM INCLUDES. 17 
 
 and do not really belong to the land-owner to convey, 
 if that be so, the real owner thereof might move them 
 off, although the purchaser of the farm supposed he was 
 buying and paying for all the buildings on it. His only 
 remedy in such case would be against the party selling the 
 premises. But some courts decide that the honest buyer of 
 the farm would take all the buildings on it, and if they did 
 not justly belong to the seller, the real owner must sue him 
 for wrongfully selling his property. As part of the buildings 
 conveyed, of course the window-blinds are included, even if 
 they be at the time taken off, and carried to a painter's shop 
 to be painted : it would be otherwise if they had been newly 
 purchased and brought into the house, but not yet attached or 
 fitted to it. Lightning-rods also go with the house, if a 
 farmer is foolish enough to be overcome by those smooth- 
 tongued lightning-rod agents. 
 
 A brick furnace in the cellar is considered a part of the 
 house; some think otherwise as to portable furnaces, but this 
 may not be everywhere so. An ordinary stove, with a loose 
 pipe I'unning into the chimney, is not, while a range or grate 
 set in brick-work is. Mantel-pieces so attached to the chim. 
 ney as not to be removed without marring the plastering, go 
 with the house ; but, if merely resting on brackets, they may 
 be taken away by the former owner without legal liability I 
 am inclined to believe that a deed of a house does not include 
 the gas fixtures therein, and it is generally understood, that, 
 if a lessee puts in his own gas-fixtures, he may remove them 
 when his lease expires. Tiie pumps, sinks, etc., fastened to 
 the building, are a part of it in law, and so are the water- 
 pipes connected therewith, bringing water from a distant 
 spring. A wooden cistern in the cellar, standing on blocks of 
 wood, probably falls within the same rule. If the farmer has 
 iron kettles set in brick work, near his barn, for cooking food 
 for his stock, or other similar uses, the deed of his farm 
 covers them also, as likewise a bell attached to his barn, to 
 call the men to dinner. A cider-mill goes with the apple- 
 orchard, and not with the year's crop of apples. If he has a 
 
18 FARM LAW. 
 
 cattle-l)arn on the premises, the tie-up planks, stanchion- 
 timbers, tie-chains, and hinge-hooks used for fastening the 
 animals in their stalls, belong to the barn, and not to the cattle. 
 If the farmer indidges in ornamental statues, vases, etc., 
 permanently erected, and resting on the ground by their own 
 weight merely, and sells his estate without reservation, these 
 things go with the land. But even this might not be so, if the 
 article had just arrived, and never been placed or fitted to its 
 position on the lawn. 
 
 The same rules apply to mortgages of a farm, as to absolute 
 deeds of it; with one additional important consideration, viz., 
 any additions or permanent improvements upon the land after 
 the mortgage is given, belong to the land, and go with it, so 
 that if the farmer, after mortgaging his farm, erects a new 
 barn, or other out-buildings, but fails to pay the mortgage 
 debt, and the mortgagee forecloses, the owner will lose the 
 whole, new and old, though it be twice the value of the whole 
 mortgage debt. 
 
 CHAPTER IV. 
 
 HIRING II E L r . 
 
 After taking possession of the farm, one of the first, and 
 often one of the most trying duties of the farmer is to hire his 
 help. Every employer of lalior knows full well, that if a man 
 is hired without any special bargain as to the price, he is 
 entitled to the current rate of wages for such labor, and no 
 more; but every laborer may not be aware that if he engages 
 to work " for a year," but leaves without good cause at the 
 
HIRING HELP. 19 
 
 end of eleven months, he is not, in most states, legally entitled 
 to any compensation for what he has done, but forfeits the 
 whole: and this is so, whetiier he has agreed to stay for the 
 entire year at one ronnd snm, or for a year at the rate of 
 twenty dollars a month; although, if the farmer had paid for 
 each month's work as it came dne, he could not probably 
 recover it back, even* if the laborer afterward wrongfnlly left 
 him before his time was out. And, if he has given a note for 
 the amount already earned, he must pay the note, notwith- 
 standing the subsequent failure of the other party to work out 
 his full time. But if nothing has been paid, and no note 
 given, the laborer would not only forfeit his wages, but also 
 would be liable to pay the employer for any damage done him 
 by leaving him without help at a critical time in the year ; 
 therefore, if he has agreed to work a year for twenty dollars 
 a month, and quits just before haying because he can get forty 
 dollars at mowing for some one else, and the farmer has to 
 pay that price to get another man to supply his place, he can 
 recover of the laborer the extra twenty dollars a month for 
 the balance of the unexpired engagement, as damages caused 
 him by such breaking of the contract; and the laborer could 
 not set off against the claim of the employer the value of the 
 work he had really done, and not been paid for. And this is 
 so, whatever S[)ecific thing you hire a man to do. If he 
 engages to build you a barn for five hundred dollars, to lay up 
 a hundred feet of stone wall for a dollar a foot, or dig a well 
 twenty feet deep for twenty-five dollars, and voluntarily quits 
 without good excuse when the job is half done, you are not 
 obliged to pay a single cent for what he did do ; although, if he 
 had substantially completed it in good faith, he would not lose 
 all his labor because, in some minute particulars, he had not 
 finished it exactly according to the precise terms of the 
 contract. 
 
 It a farm laborer so conducts himself as to justify his 
 discharge before his time has expired, it may be he would not 
 forfeit all his wages (as when he voluntarily quits without 
 cause), but might recover whatever his services were really 
 worth to the farmer, not exceeding the contract price. 
 
20 FARM LAW. 
 
 Oil the other hand, if the laborer has good cause for leaving, 
 he may do so, and compel the employer t<> pay for the time he 
 actually did work. And among the well-known excuses for 
 leaving before the original bargain contemplated, are sickness 
 of the hired man, or his physical inability to labor, or the 
 prevalence of some dangerous epidemic in the family or in the 
 vicinity, which might render it hazai'dous for the man to 
 remain; such as cholera, small-pox, and the like. Any 
 improper treatment by the employer, as scarcity of suitable 
 food, is also deemed sufficient excuse for seeking other 
 quarters. 
 
 And even though the laborer so misbehaves himself that he 
 is arrested and imprisoned for some crime, and so is busy 
 picking oakum for the county in the house of correction, this 
 is considered a legal excuse for not attending to his farm 
 duties, and he can make the farmer pay for what he did do 
 before he involuntarily went into the public service. 
 
 It has been thought that merely harsh language by the 
 employer to his employee would not justify him in leaving 
 before his stipulated time was out. In one instance the 
 farmer asked his hired man to water and feed the cattle one 
 Sunday morning. The man said he wouldn't do it : the 
 employer told him to " go to hell, but to mind and work his 
 time out first." Instead of following the directions, the 
 laborer went to a lawyer's office, and sued for his wages up 
 to that time, but was held not entitled to any thing. Had 
 the master required him to do any unnecessary or unlawful 
 work on a Sunday, it would probably have been a good excuse 
 for his leaving ; but necessary farm-work, such as care of 
 live animals, may undoubtedly be required on Sunday. And 
 any work done on Sundays, ordinarily comes under the 
 regular contract, and not as extra work. 
 
 Difficulty with another laborer is not a good excuse for 
 leaving without permission; but it is always a question for the 
 jury to decide whether the man had good cause for leaving, 
 and their sympathies being with the person employed, they 
 usually think the lal^orer is worthy of his hire. The cheaper 
 
HIRING HELP. 21 
 
 way generally in such cases is, if the amount is not large, to 
 pay the man, let him go, and never hire him again. 
 
 What we have before stated about a forfeiture of wages, is 
 founded upon the doctrine that the laborer has made an entire 
 contract for a time not exceeding one year, and that he must 
 faithfully fulfil it, or he is entitled to no pay : therefore, if for 
 any reason this entire. contract is not valid and binding on the 
 laborer, he may disregard it entirely, and quit when he likes, 
 and still recover for all the time he did work. For this rea- 
 son, if the l)argain is to work for more than one year, or even 
 for just a year, but to commence at some future day, as a week 
 after making the bargain, and the contract is not written 
 down and signed (which nobody ever thinks of doing;, it is 
 not binding on the laborer, and he can break it from a mere 
 whim, and still make the farmer pay. In like manner, if the 
 laborer is under twenty-one, he is not bound by his bargain, 
 but may desert when he pleases, and recover " back pay." 
 And this is so, although the young man appears to be of age 
 or is married and has a family, or even though he falsely 
 stated he was over age, and able and willing to make as good 
 a bargain as if half a century old. 
 
 Laborers sometimes make a contract that if either party is 
 dissatisfied, the contract may be terminated. Under such 
 circumstances, he may leave when he pleases, whether he had 
 any good reason to be dissatisfied or not. 
 
 But even if you have a nominal remedy against a laborer 
 who has left you unjustifiably in the midst of his contiact, 
 this so often proves practically worthless, that the law also 
 gives you a right of redress against the person who has enticed 
 him away with the offer of better wages, or otherwise. Of 
 course, one farmer has a right to offer inducements to a 
 laborer to leave his present employer, when his time is out, or 
 it he is only employed from day to day, and under no legal 
 obligation to remain longer, but enticing him away during his 
 contract is quite another matter. 
 
 The law does not allow one man thus to interfere with 
 another man's business without being liable to pay for all the 
 
22 FARM LAW. 
 
 inconvenience and loss he may thereby cause to the person 
 whose men are thus induced to breaiv their contract with their 
 former employer. 
 
 It is for this reason that comlnnations among workmen for 
 a strike, and to induce fellow-workmen, l)y intimidation or 
 otherwise, to forsake their employers, are clearly illegal, and 
 render the parties involved liable both civilly and criminally. 
 Such associations are more common among operatives than 
 farm laborers; but probably the same rules apply to both. 
 
 A few years since, in Nebraska, a number of laborers con- 
 spired together to quit work simultaneously, and return the 
 articles they were at work upon, in an unfinished and worth- 
 less condition. They did so, but they were obliged to pay 
 several hundred dollars damages to their employer. 
 
 CHAPTER V. 
 
 RIGHTS IN THE ROAD. 
 
 If a farm deed is bounded by, on, or upon a road, it usually 
 extends to the middle of the roadway. There are a few 
 exceptional cases; but ordinarily the farmer owns the soil of 
 half the road, and may use the grass, trees, stones, gravel, 
 sand, or anything of value to him, either on the land, or 
 beneath the surface, subject only to the superior rights of the 
 public to travel over the road, and that of the highway sur- 
 veyor, or other similar officer, to use such materials for the 
 repair of the road; and these materials he may cart away, 
 and use elsewhere on the road, but he has no right to use 
 
EIGHTS IN THE ROAD. 
 
 23 
 
 them for his own private pui-poses. No other man lias a right 
 to feed his cattle there, or cut the grass or trees ; much less 
 deposit his wood, old carts, wagons, or other things thereon ; 
 and after notice to the owner, the farmer may remove them 
 to some suitable place, and if th6y are lost or injured it is not 
 his fault. The owner of a drove of cattle which stops to feed 
 in front of your land, or of a drove of pigs which root up the 
 soil, is responsible to you at law as much as if they did the 
 same things inside the fence. No person's children have a 
 legal right to pick up the apples under your trees, although 
 the same stand wholly outside of the fence. No private per- 
 son has a right to cut or lop off the limbs of your trees in 
 order to move his old barn or other buildings along the high- 
 way ; and even if the owner of the building has a license 
 from the proper authorities to move the same through the 
 streets, this does not exempt him from liability to private 
 sufferers. And no traveller can hitch his horse to your trees 
 in the sidewalk, without being liable if he gnaws the bark or 
 otiierwise injures them ; and you may untie the horse, and 
 remove him to some safe place. If your well stands partly on 
 your land, and partly outside the fence, no neighbor can use 
 it, except hy your permission. Nay, more: no man has a 
 right to stand in front of your land, and whittle or deface 
 your fence, throw stones at your dog, or insult you with 
 abusive language, without being liable to you for trespassing 
 on your land ; he has a right to piSS and repass in an orderly 
 and becoming manner, — a right to use the road, liut not to 
 abuse it. 
 
 One judge thought that if a strolling musician stops in front 
 of the house, and plays a tune, or sings an obscene song unde*' 
 the window, he would be liable as a trespasser on the road. 
 It ought to be so, anyway. In one case, a man stopped in the 
 highway, in front of a house, and used vulgar, obscene and 
 profane language in the hearing of the inmates of the house, 
 and it was decided that the man of the house had a right to 
 put a stop to such annoyance, even l)y the use of force. 
 
 Perhaps it may be well to state here, that, if the highway 
 
24 FARM LAW. 
 
 becomes suddenly impassable by heavy snows or deep gullies, 
 a traveller may turn aside into your adjoining land, without 
 being liable as a trespasser, if he does no unnecessary injury. 
 But, notwithstanding the farmer owns the soil of the road, 
 even he cannot use it for any purpose which interferes with 
 the use of it by the public for travel. He cannot put his pig- 
 pen, wagons, wood, or other things there, if the highway 
 surveyo)- orders them away as obstructing public travel. If he 
 leaves such things outside his fence, and within the limits of 
 the highway as actually laid out (even though some distance 
 from the travelled path), and a traveller runs into them in 
 the night, and is injured, the owner is not only liable to him 
 for private damages, but may also be indicted and fined for 
 obstructing a public way. And, if he have a fence or wall 
 along the highway, he must place it all on his own land, and 
 not half on the road, as in case of division fences between 
 neighbors. And such front fence must end on each man's 
 own line. One man has not a right to put the terminal post 
 of his from fence partly on his neighbor's land, the same 
 being no part of a division fence. But, as he owns the soil, if 
 the road is discontinued, or located elsewhere, the land reverts 
 to him, and he may enclose it to the center, and use it as a 
 part of his farm. 
 
 CHAPTER VI. 
 
 WAYS OYER THE FARM. 
 
 Others may acquire a right of way over your farm, in either 
 one of three modes : 
 
 1 By purchase or grant from you. 
 
 2 By long-continued use, or prescription. 
 
 3 By actual necessity. 
 
 As to the first method, to gain a permanent right by pur- 
 chase or grant, it must have been by a regular and complete 
 
WAYS OVER THE FARM. 25 
 
 deed, executed in the same way as a deed of the land itself. 
 If the bargain was only oral, or even if it was in some simple 
 written paper, but not in a formal deed under seal, it would, 
 even though fully paid for, be in law revocable, — a mere li- 
 cense as it is called, — and might be terminated, at the mere 
 wish of the land-owner, by a notice to the other party to use it 
 110 longer. Being a kind of interest in land, the strict law 
 requires it to be conveyed by a deed. 
 
 2 The second mode, by prescription, requires length of time, 
 generally twenty years, but in some states, only fifteen ; and 
 the way must have been used continuously, peaceably, and 
 under a claim of right to do so, and not by your permission or 
 consent. If it was only very rarely used, if it was not peace- 
 ably used, but against your protest, or if used by your tacit 
 consent, the use would not ripen into a legal right, however 
 long continued. And, if used under all those conditions, it 
 must have been in some regular and uniform place. No man 
 can gain a right by such means to wander over your farm just 
 where he has a mind to, or where his convenience suits him. 
 That would be an intolerable burden to the farmer. 
 
 To gain this right by twenty years' use, it is not necessary 
 that any one owner should have travelled it twenty years. If 
 successive owners have unitedly used it for that period, it 
 would be sufficient, so far as length of time is concerned. And 
 if this prescriptive right of way was gained only by using it 
 for some particular purpose, as for carting wood^from a wood- 
 lot beyond, that would not authorize the person to continue to 
 use it for all purposes, after the wood had been all cut off, and 
 the lot covered over with buildings. 
 
 8 The third mode, by necessity, arises when you sell a man 
 a back lot, with no means for him to get to any highway except 
 over your remaining land. The law gives him a right to cross 
 your land to and fro, otherwise, his land would be useless. At 
 present lie can't reach it by balloon to any practicable purpose, 
 and therefore he must cross your land. So, if you sell a man 
 all your front land, retaining the back part, and have no way 
 
26 FARM LAW. 
 
 out except over the part sold, you retain a riglit to cross the 
 lot sold, though your deed in such case says nothing about it; 
 and this is so, even if in your deed you warrant the land to be 
 free and clear from all incumbrances. It is a familiar maxim 
 that "necessity knows no law." 
 
 But right of ways by necessity, continue only so long as the 
 necessity itself continues ; and if a highway is afterward laid 
 out, touching the back land on the other side, or if the owner 
 of such back lot afterward buys a lot adjoining it, and between 
 it and a highway, he can no longer cross over your land as 
 before, but must go out the other way. And so long as he 
 does have such a right, he must go in such a place as you des- 
 ignate, if it be a reasonable place. If you mark out a road or 
 a way along the fence, or on the poorer ground, he should con- 
 fine himself to that. If you neglect to do so, probably he may 
 then locate his own way, but must do so in a "reasonable 
 manner," and where it will do you no unnecessary damage. 
 He has not a right always to take the "shortest cut" across 
 your land, whatever it may be. Neither has he the right to 
 keep changing his route, and so cut your land all up with his 
 wheel-ruts. And, if the way becomes rairy or out of repair, he 
 must keep it in good condition if he wants to use it. Your 
 duty is done when you allow him to cross : you are not obliged 
 to smooth his pathway for him, and rake out the sticks and 
 stones. But if you actually obstruct his usual road, and per- 
 haps if it becomes suddenly impassable b}^ natural causes, he 
 would have a right to deviate to one side until he has oppor- 
 tunity to remove the obstructions or make repairs. 
 
 All such rights of way are apt to be nuisances to the farmer, 
 and not unfrequently lead to litigation. 
 
 It is important to know, that, in whatever mode a right of 
 way is acquired over your land, you have ordinarily a right, in 
 the absence of any stipulation to the contrary, to erect suitable 
 gates or bars at the entrances thereto from the highway ; and 
 if the other party leave them open, and cattle get in, or yours 
 get out, he is liable to you for the damage which ensues. 
 
RAILROADS THROUGH FARMS. 27 
 
 CHAPTER VII. 
 
 KAILKOADS THROUGH TAEMS. 
 
 Many farms, now-a-days, especially in the valleys, have one 
 or more railroads crossing them; and as such railroads are not 
 generally acceptable to the farmer, it becomes interesting to 
 know the legal liabilities and rights of the company and the 
 land owner. 
 
 In the first place, railroad companies do not generally 
 acquire the fee in any land they take by law for their road-bed, 
 but only an easement, or right to maintain their road there, 
 with all necessary incidental rights thereto. If the farmer 
 gives the company a deed of the land, of course they have the 
 same absolute ownership any other purchaser would have. And 
 in some states this may be so when the land is seized and con- 
 demned by the railroad company, contrary to the will of the 
 owner; but usually the fee of the land remains in the person 
 from whom it was taken. The exclusive rights of property in 
 the land, and in the trees and herbage upon its surface, and 
 the minerals below it, belongs to him, and the company have 
 only a right of way over the surface. 
 
 If any stranger, therefore, should take and carry away any 
 such things from the strip of land taken for the road, he would 
 be liable to the adjacent land owner for so doing. But owing 
 to the peculiar character of railways, and the necessity for an 
 exclusive use and occupation of the road by the company, the 
 land owner might not have, as against the company, a right to 
 enter ad libitum, and cut and carry away what was growing 
 thereon, or remove the soil, turf, etc. 
 
 And of course the company have a right to cut down, and 
 remove, any trees, buildings, or other objects within their 
 authorized location, which may at any time interfere with 
 their use and operation of the road. 
 
28 FARM LAW. 
 
 It may seem singular that a railroad company, a corporation 
 organized only for private profit, should have a legal right to 
 take the best of a man's land without his consent, and subject 
 him to the annoyances necessarily incident to such a use of 
 his property; but it is quite universally established that the 
 legislature have a right to grant railroad companies such 
 powers, mainly because, though the direct object of the stock- 
 holders in building a railroad is pecuniary profit, yet being 
 built, it becomes a great public highway — artificial highway — 
 on which every one has a right to travel, upon complying with 
 the terms and conditions sanctioned by the law. Being, how- 
 ever, a power contrary to common right, it is to be strictly 
 construed, and not extended beyond the necessity of the case ; 
 and railroad companies do not have a right to seize and take 
 all the land they may happen to want, but only what they act- 
 ually need for operating their road. They would have no right 
 to seize and take possession of land wholly outside of their 
 location, merely for the purpose of speculation and profit. 
 
 In some states, also, the land lawfully taken must be actually 
 paid for, before the company has any right to take possession; 
 while in others, they have a right of immediate possession, 
 leaving the damages to be paid for afterward, as the parties 
 may agree, or a legal tribunal determine. 
 
 The ultimate fee of the road-bed therefore, generally remain- 
 ing in the former owner, if the road is discontinued, or the 
 location entirely changed or abandoned, all land taken by law 
 reverts to the former owner, and he may re-occupy the same. 
 And as the fee is all the time in him, if he sell a part of his 
 farm, on one side of a railroad, and bounds it by the road, the 
 grantee acquires a right in the fee to the center of the road, as 
 in cases of deeds along highways, etc. 
 
 Such being the respective interests of land owner and rail- 
 road company in the bed of the road, the next question is, as 
 to the fences along this narrow belt of land. Obviously, the 
 fences ought to be erected and maintained by the railroad 
 company, or the land owner ought to be compensated for the 
 
RAILROADS THROUGH FARMS. 29 
 
 expense of doing so himself. Accordingly, as the more simple 
 mode of settling the question, it is now generally provided by 
 statute, that railroad companies shall do all the fencing, on both 
 sides, and ever afterward maintain them. And where that is 
 so, the compa4iy is liable for any injury to the adjoining owner's 
 cattle or beasts which stray on the road, and arc there iiilled 
 or injured by passing trains, whether there is, or is not, any 
 negligence in running the trains. 
 
 But where there is no positive law requiring the company to 
 fence, the duty of keeping one's animals off the road is on the 
 owner of the animals, and if they stray upon the road, and 
 are injured, the company is not liable unless guilty of negli- 
 gence in running the train. 
 
 And even where the law actually requires the railroad com- 
 pany to keep up the fences, that applies only to cattle belong- 
 ing to the adjoining owners, or lawfully on their lands, by 
 their permission. It does not apply to cattle of third persons 
 remotely situated, tliat have strayed away, and wandered on to 
 the railroad, and then killed. In such cases the company is 
 not responsible for any defects in their own fence, but only in 
 case they have negligently run down the beasts. ■ 
 
 These are the general principles applicable to this subject, 
 but it is so mucli controlled by local vStatutes and decisions, 
 that it would be impracticable and confusing to discuss it fur- 
 ther here. 
 
 Another important question arising about railroads, is their 
 liability for fires, communicated Ijy their passing locomotives 
 to tlie woods, pastures, or buildings of farmers along the route. 
 Primarily, a railroad company is not liable for fires, unless 
 caused liy some negligence or carelessness of their employes. 
 Formerly, and antecedently to any statutes, railroad companies 
 were not lialjle for hres, caused by their locomotives, without 
 proof of some negligence, either in the construction or mode of 
 running the engine, by wliich the fire was caused, or otherwise. 
 But as the liability to such fires was so great, and the amount 
 of damage so caused was very extensive, it became necessary 
 
30 FARM LAW. 
 
 to eiilaige their liabilitj' ; and now in some states, by statute, 
 railroad corporations are liable for all damages to the buildings 
 or personal property of land-owners along their route, arising 
 from fires communicated by their locomotives, and without any 
 proof of negligence or carelessness, either in the company or 
 any of its employes. This seems to be the law in Massa- 
 chusetts. 
 
 And this statute has a very liberal construction, extending 
 not only to buildings immediately adjoining the railroads, and 
 which are fired directly by sparks from the locomotives, but 
 also to buildings at a long distance from the road, and which 
 are set on fire by sparks flying through the air from some 
 building nearer by, which had first taken fire from the engine- 
 As a protection to themselves, however, railroad companies 
 are authorized to get the property along the route insured for 
 their benefit ; so that, if obliged to pay, they may remunerate 
 themselves, and thus the burden is more equally divided. 
 Difierent states may have difterent statutes upon this subject. 
 
 CHAPTER YIII. 
 
 AS TO FARM FENCES. 
 
 It was a fundamental principle of our law (though the con- 
 trary exists in many of the United States), that every man 
 must keep his cattle on his own land at his peril. He was 
 liable if they strayed away into other people's grounds. It 
 was necessary, therefore, at common law, that every man should 
 keep a personal watch over his animals, or surround his land 
 with a fence. This fence was primarily, therefore, not to keep 
 
AS TO FARM FENCES. 31 
 
 other people's cattle out, but to keep his own in : and so any 
 hind-owner, if he l?ept cattle, was bound to erect the entire 
 fence around his close, whether his neighbor kept any cattle or 
 not; and, if the latter also owned any, he must do the same, 
 or keep his beasts at home in some other way. This was the 
 law in Massachusetts, Maine, Vermont, New Hampshire, New 
 York, Maryland, Minnesota, Indiana, Michigan, Pennsylvania; 
 while Connecticut, Ohio, Iowa, Kansas, West Virginia, Cali- 
 fornia, and some others, adopt the other rule, that the man 
 whp cultivates his land must keep other people's cattle off. 
 And statutes sometimes so declare. 
 
 But two parallel fences would be attended with useless ex- 
 pense ; and, as one and the same fence would answer for two 
 adjoining proprietors, it was long ago provided by statute law, 
 in many states, that adjoining owners of improved lands should 
 maintain partition fences in equal shares ; and, if they did not 
 agree how the fence should be divided, either might apply to 
 the fence viewers, elected by the town every year, to decide 
 which part each proprietor should keep up. And if, after such 
 decision, either party refused or neglected to build or keep in 
 repair his portion, the other could do so, and recover the ex- 
 penses (in Maine double the expenses) of the delinquent owner 
 by a suit at law. It follows, therefore, that if my adjoining 
 owner does not keep up his half of the fence, and my cattle 
 get through and injure his crops, he has no redress against me, 
 since his own neglect was, in part at least, the cause of his in- 
 jury. But now comes in a very important addition to this 
 rule ; and this is, if my cattle stray beyond the immediately 
 adjoining land, into the farm of a third person, and there injure 
 his crops, I am liable for the damage to him, although my own 
 half of my fence is good, and my animals escaped tlirough my 
 immediate neighbor's defective fence ; because, as to all persons 
 except my nearest neighbor, I am still bound to keep my cattle 
 on my own land ; and it is no excuse for me, so far as third 
 persons are concerned, that my neighbor neglected his halt of 
 our division fence. Whether my neighbor would be liable to 
 
32 FARM LAW. 
 
 refund to me what I had to pay to such distant owner, is not 
 yet settled ; but it is established that the latter could not him- 
 self sue the negligent land owner, but only the owner of the 
 cattle. Nay, so far is this rule carried, that although such 
 third person did not keep up h.is own fence, and the cattle go 
 into his land through his own fault, he can still make me pay 
 the damages; because he is not bound in law to keep up any 
 fence at all, except as against his nearest neighbor, and not 
 against my cattle further off. In other words, if A, B and C 
 own three adjoining lots, and A's cattle stray into B's land 
 through B's neglect, he has no remedy against A; but if they 
 stray still further, on to the land of C also, and there do mis- 
 chief, C has a claim for the damages against A, even though 
 the animals went through his own broken-down fence. A 
 must keep his animals at home at his own peril. So if your 
 vicious bull escapes from your pasture, solely through a defect 
 in the fence, which your neighbor was bound to keep up, and 
 after roaming over his lot, finds his way into other lands, still 
 further away, and theie injures man or beast, you are re- 
 sponsible, though you did not know the fence was down. 
 
 For similar reasons, if A turns his cattle into the highway, 
 and they come on to your land from the road, either because 
 your front fence is defective or altogether gone, you have a rem- 
 edy against A for all the damages you sustain ; for you are not 
 obliged to have any fence on the road, except to keep your 
 own cattle in, and A must keep his own cattle at home. And 
 so stringent is this rule, that if other people, in roaming over 
 your grounds, hunting, fishing, or berrying, leave your bars 
 down, by which your cattle escape into the highway, and 
 thence come into my cornfield, you are responsible to me for 
 all the damage, although not actually in fault, if you kept all 
 your fences up. On the other hand, if you are carefully 
 driving your cattle along the highway, and without your fault 
 they break away from your control, and run into my adjoining 
 land, and you drive them out as soon as you reasonably can? 
 you are not responsible for the damage done ; for you had a 
 
AS TO FARM FENCES. 33 
 
 right to drive them along the liighwaj, with proper care and 
 attention ; while in the other case they were not lawfully in 
 the highway at all, although the owner was not personally at 
 fault. 
 
 The proper legal height of all division fences in Massachu- 
 setts, Maine, and some other states, is four feet ; and they may 
 be made of rails, timber, boards, or stone. A brook, river, 
 pond, ditch, or hedge, may also be sufficient, or any other 
 things which the fence-viewers consider equivalent to a four- 
 foot rail-fence. The number of rails is not prescribed by law. 
 But do not think because you have a good rail-fence, four feet 
 high, and well kept up, that therefore you have done your 
 whole duty in keeping your animals at home : for if your 
 greedy cow pokes her head between the rails, and lops oflf 
 your neighbor's corn or cabbages, you are as much bound to 
 pay for the damage as if you had driven her clear in and told 
 her to eat her fill. 
 
 Neither think your responsibility is always confined to 
 damage done by yovr cattle. If the cattle are injured by your 
 negligent fence you may be responsible to the owner. A few 
 years ago two farmers had a wire fence between them, now s^ 
 common in some parts of the country. One allowed his end 
 of the fence to get rusty, and fall over into the grass, and 
 gradually it broke up into short pieces; the other's cow, feed- 
 ing in the tall grass, accidentally swallowed one of these bits 
 of wire, and a post mortem examination soon became 
 necessary. The coroner's inquest decided that the cow must 
 be paid for. 
 
 If that is good law — and I suppose it is — your wife or maid- 
 servant should be careful — as suggested in the Albany Law 
 Journal — where she throws her old hoop-skirt, lest some 
 unlucky cow gets hold of it while browsing on the grass and 
 vines that have run over and concealed it. 
 
 These division fences may usually be placed one-half on 
 each side of the line, even though ditches be used three feet 
 wide ; and both owners have a common interest in the whole 
 
34 FARM LAW. 
 
 fence ; and they must be kept in good repair throughout the 
 entire year, unless both parties otherwise agree. But the 
 duty of maintaining partition fences by statute, exists in 
 Massachusetts only when both parties improve their lands. 
 It would not be just to make a man, whose lands are wild, or 
 not improved, and on which he neitlier lias cattle to stray 
 away and injure others, or growing crops which can be injured 
 by other people's animals, to pay the expense of building or 
 maintaining a fence which can be of no advantage to him. 
 Accordingly, if only one of the adjoining owners improves his 
 land, he has no right to compel the other to pay any part of 
 the expense of a fence (except in some states as to a house-lot 
 of half an acre or less) ; and if he needs a fence to keep his 
 own animals at home, or for any other purpose, he must build 
 it himself. If, therefore, A owns a pasture-lot alongside of 
 B's wood-lot, the latter is not bound by statute to help main- 
 tain a fence between them ; but, if A puts cattle into his pas- 
 ture, he must keep them there as best he can, either by watch- 
 ing them, or, if he thinks it cheaper, by building a fence 
 himself around his entire lot. So, if both are wood-lots, the 
 owners are not obliged to erect a fence ; but, if either allows 
 his cattle to range the woods, he must take care they do not 
 browse through his neighbor's woods, or he will be responsible. 
 
 In some states, if A, the owner of land which he has here- 
 tofore kept fenced, wishes to lay it common, he can do so by 
 giving six months notice of his intention to the occupants of 
 the adjoining land, and then he will not be obliged to maintain 
 a fence, so long as his land lies common and unimproved. 
 The safer way always is to give this notice in writing. But he 
 must not take away his fence adjoining any improved land, 
 without first giving the owner or occupant an opportunity to 
 purchase it, and if they cannot agree upon the price, the 
 fence-viewers will appraise it for them. 
 
 The sum of the whole matter is this : by the common and 
 general law every man is bound to keep his own cattle on his 
 own land at his peril. The duty of doing this by a fence is 
 
AS TO FARM FENCES. 35 
 
 created wliolly by statute, and a fence need not be made ex- 
 cept where the statute clearly requires it. And when the law 
 requires a man to erect a division fence, he has a right to 
 such use and occupation of the adjoining land as is necessary 
 to carry out that duty. 
 
 What we have thus far said as to the joint expense of 
 fences, relates only to partition fences between two farmers. 
 As to fences along a railroad, the law is quite different. The 
 general railroad law, in some states, requires the company to 
 maintain a suitable fence along the whole line, through wood- 
 land as well as improved land ; and the farmer has no part of 
 the expense to pay. This railroad fence need not be always 
 four feet high, nor need it always be so close as the division 
 fence between land owners. It must be "suitable" merely, — 
 suitable for the place where it is situated ; and through the 
 woods, or where there is little or no danger of animals straying 
 on to the track, it might be quite light, and yet comply with 
 the law. But if any cattle of the adjoining land-owner do 
 escape through it on to the track, through its unsuitableness, 
 and are there injured by a passing train, the company is 
 responsible. But here, again, the same principle comes in 
 which we have before stated : viz., the company is not bound 
 to fence out everybody's cattle, but only those of the land-owner 
 immediately adjoining. If, therefore, the animals of one 
 remote from the railroad break out or stray away from their 
 pasture, and after wandering over the intermediate lands, 
 finally find their way on to the railroad, and there meet their 
 death, the railroad company is not absolutely liable : the owner 
 should have kept his cattle on his own lot, and not allowed 
 them to trespass on others' lands. In some states this may 
 not be so. Of course, if they were lawfully pasturing on the 
 lands near the railroad, by permission of the land-owner, they 
 would be protected in the same manner as his own animals 
 are ; but if, unlawfully straying in the highway, they are killed 
 while crossing a railroad, the company is not bound to pay, 
 unless guilty of actual negligence. 
 
36 FARM LAW. 
 
 CHAPTER IX. 
 
 IMPOUNDING CATTLE. 
 
 Closely connected with the subject of fences is that of im- 
 pounding animals. If you find your neighbor's cattle in your 
 cornfield, there are three courses you may pursue : 
 
 1 You may put the animals in the town pound. 
 
 2 You may sue the owner for damages. 
 
 3 You may quietly turn tiiem into the highway, and say 
 nothing. 
 
 Of these three the last is the easiest to be done, and the 
 hardest to make up one's mind to do. We are directed in the 
 good book to forgive our neighb(jr his trespasses, but my copy 
 says nothing about forgiving his cattle their trespasses. If a 
 man ever allows himself to violate the third commandment, he 
 is tempted to use that outlet for his indignation, when he 
 jumps up from the dinner-table in a hot day in July to drive 
 his neighbor's breachy cattle for tlie seventh time out of his 
 garden or cornfield. It might, perhaps, alleviate his sufferings 
 to know, that, if they then stray away and are lost, it is not 
 his fault, and the owner has no claim on him ; and he may 
 even mildly hasten their departing steps by the aid of a good- 
 sized dog ; and if the said dog, in the excitement of the mo- 
 ment, takes a bit out of the nose or ear of the trespassing 
 cattle, its ovs^ner is not bound to supply another. In some 
 states, however, you must, apparently, be careful how large 
 and fierce a dog you "set on" to your neighbor's cattle, lest 
 you also suffer. 
 
 The second remedy of a suit at law is more peaceful, but 
 slower, and more likely to benefit the lawyer than the farmer. 
 
 Impounding is the most summary, and generally the most 
 
IMPOUNDING Cattle. 37 
 
 effective, but is surrounded with legal dangers : and a slight 
 mistake is often fatal, and, like 
 
 " Some muskets aimed at duck or plover, 
 Bear wide, and kick their owners over." 
 
 The general outline of this remedy in Massachusetts is this. 
 If any person actually finds any sheep, swine, horses, or neat- 
 cattle doing damage in his land, he may drive them to the 
 town pound, or some other suitable place, giving them suf- 
 ficient 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 meantime 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, etc., 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 pre- 
 fers, he may, in the first instance, drive them to the pound, or 
 send for a field driver* (who is generally the last married 
 man in town) and request him to impound them, sending a 
 similar memorandum to tlie 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. 
 Before the owner can release his animals, he must pay the 
 damages and all the expense; and, if he decline to do so, they 
 may be sold by public auction, and the balance of the proceeds 
 above the expenses deposited with the town treasurer for the 
 benefit of the owner. This remedy seems to be seldom 
 resorted to in modern days; for, in most of the town pounds, 
 which we pass, we notice that the gate is entirely gone, or 
 so dilapidated as to furnish very little security against the 
 escape of animals confined therein : nevertheless, every town 
 in Massachusetts and Maine is still liable to a fine of fifty 
 dollars for not keeping one or more suitable pounds. 
 
 A recent law in Massachusetts has added one more very 
 important protection against invading animals, making the 
 
 *In Maine, the ofllce of field-driver no longer exists. 63 Me. 154, 
 
38 FARM LAW. 
 
 owner of any sheep, cattle, horses, swine, or fowls, liable to a 
 fine of ten dollars if he wilfully allows them to enter another's 
 orchard, garden, mowing land, or other improved land, after 
 receiving written notice from the owner forbidding it. This 
 statute extends to fowls, which tlie laws in regard to impound- 
 ino; did not. 
 
 CHAPTER X. 
 fakmer's animals. 
 
 Passing from the subject of cattle straying away, and 
 doing damage on other people's grounds, we have next to 
 consider how far the farmer is liable for their good behavior 
 in the public streets, or even on his own premises. It is clear 
 enough, that if a vicious horse by the city sidewalk suddenly 
 nips a piece out of your coat-sleeve as you are passing by, and 
 his owner knew his habits, he is bound to pay the tailor's bill ; 
 whereas if he only frightens you, and makes you jump, you 
 have no redress, for that is what the law calls damnum absque 
 injuria. That is an innocent expression in itself; but, if you 
 give an excited utterance to it, a bystander might think you 
 were indulging in forbidden language ! 
 
 It may not be generally understood that if a man turns his 
 animals loose in the public highway, and they there injure the 
 person or property of another lawfully using the way, the 
 owner is responsible for all damages they may do, whether he 
 knew they had any dangerous disposition or not. He had no 
 right to let his cattle run loose in the public highway. In one 
 instance a farmer's old black sow was wallowing in the gutter 
 
FARMER S ANIMALS. 
 
 39 
 
 by the side of the road, and frightened a horse and threw a 
 young lady out of the carriage; the farmer was held liable, 
 although he did not know the animal was at large. In another 
 instance a man let his horse go out to feed in a public place 
 where some very young children were playing, and some of 
 them began to switch him, whereupon he turned and kicked 
 one of them so that he died, and the owner was convicted of 
 manslaughter. Had he known the animal was dangerous, it 
 might have been more serious with him, since, in the Mosaic 
 law, it was declared that if the owner of an ox knew that it 
 pushed with its horn, and did not keep it in, and it killed a 
 man or woman, not only the ox, but also the owner, was put 
 to death. 
 
 And now as to his liability for animals on his own premises. 
 Every owner of a dangerous or vicious animal known to be 
 such, is liable for all injury he may do to another, even though 
 the latter is at the time trespassing on the former's premises. 
 If, therefore, a man, while hunting through your woods on 
 Sunday, is attacked and bitten by your savage dog, you must 
 pay for the pound of flesh, although you did not set him on. 
 You should have posted up tlie advice of St. Paul, — Beware of 
 Dogs. And in like manner, if a boy, while robbing an 
 orchard, is tossed by a vicious IniU into the boughs of the 
 apple tree overhead, the owner is as much liable in law to pay 
 for the boy's torn trousers as if he had received the same 
 salutation when boldly coming up the path in broad daylight, 
 to call on the farmer's youngest daughter. In one instance a 
 farmer, who was much annoyed by strolling fishermen, put a 
 savage bull into the lot along the stream. On his neighbors 
 remonstrating with him that he ought to give strangers notice 
 what kind of an animal it was, he remarked, " the fellow 
 would give them notice enough himself;" but, as his notice 
 was rather too brief, the farmer had to pay five hundred 
 dollars for two broken ribs. 
 
 And if the owner of a vicious animal is liable for injuries to 
 a trespasser, much more is he liable to one who is lawfully 
 
40 FARM LAW. 
 
 walking through his grounds. Not long since, the proprietors 
 of that b^utiful " Congress Spring Park," at Saratoga, were 
 ordered by the court to pay $6,500 to a young lady named 
 Edgar, who, while enjoying a walk through the park, was 
 attacked, and seriously injured by one of the animals kept 
 there as a part of the attractions of the place ; and it was 
 thought to be no excuse that the owners had posted up a con- 
 spicuous notice : — " Beware of the Buck," And after a 
 very elaborate argument, the Supreme Court of the United 
 States at Wasliington refused to disturb the decision. What a 
 dear creature that animal was, wasn't it, especially after such 
 a verdict ! 
 
 But this extreme and severe liability absolutely depends 
 upon the fact whether the owner of the animal had any 
 previous knowledge of the brute's warlike disposition. If so, 
 the mere keeping of such an animal unconfined is itself, in 
 law, deemed culpable negligence. If he did not know the 
 fact, some other form of negligence is essential in order to 
 make the owner of an animal liable for his conduct while on 
 the owner's premises, or while lawfully in the highway under 
 the care of a keeper. For this reason, if a man's horse runs 
 away in tlie street, and injures some one, or breaks a carriage, 
 the owner is not liable, unless he carelessly left him unhitched, 
 or was guilty of some other negligence. The not uncommon 
 opinion to the contrary is quite erroneous. 
 
 As to ownership of a farmer's animals. These, like all 
 other personal property, may usually be bought and sold by an 
 oral bargain, and as all know, not even a bill of sale is neces- 
 sary; but in many states, if the animal is over fifty dollars in 
 value, a mere oral contract for its purchase is not binding in 
 law unless it be actually delivered, or the price be paid, in 
 whole or in part, or unless some note or written memorandum 
 of the sale be made; but the precise details of this statute can 
 not be fully stated in a treatise of this kind. 
 
 One caution may be necessary in buying animals: that is, 
 be sure that the seller really owns them; for if a thief steals a 
 
farmer's animals. 41 
 
 horse, and sells him to you, and you pay your money for liim, 
 in good faith, tlie real owner may come and take him from 
 you, without repaying what you have advanced. Perhaps he 
 would be bound to pay a fair charge for your keeping him in 
 the meantime. 
 
 Of course a farmer does not lose his right of ownership in 
 his domestic animals, although they have strayed away, and 
 been really given up as lost. And this is so as to animals 
 which were originally wild, but which had been tamed or 
 reclaimed. A farmer in New York state once tamed a flock 
 of wild geese, and they wandered away on to a neighbor's 
 pond, and he shot them, but he was held responsible for their 
 value. On a similar principle, if a swarm of bees leave one of 
 your hives and take to the woods, and you follow them, and 
 mark the tree where they light and enter, your ownership of 
 them still continues good as to all persons, unless it be the 
 owner of the tree. No other l)ee-hunter, at any rate, has a 
 right to capture and carry them away, or even their honey. 
 Bees belong, by nature, to the class of wild animals, so called ; 
 and wild bees in a tree ordinarily belong to the owner of the 
 land where the tree is situated; therefore a third person who 
 finds a tree in the woods containing a swarm of bees, and 
 marks it with his initials, does not thereby acquire any owner- 
 ship in the bees, even as to any other bee-hunter, who comes 
 along afterward, and actually captures and carries them away. 
 The latter could hold them as against the first finder, though 
 perhaps not when claimed by tlie owner of the tree. In cases 
 of wild animals, possession is pre-eminently "nine points in the 
 law." 
 
 The same is true of other wild animals. A hunter does not 
 acquire any legal right or ownership in a wild animal by pur- 
 suing him with dogs and gun, not even if he has wounded 
 him, and is pressing him so closely that his capture is almost 
 certain. Any other hunter may " sail in" and take him first, 
 and in law would have the better right. Perhaps, if the first 
 hunter had caught him in his trap, from which he could not, 
 
42 FARM LAW. 
 
 in all probability, have escaped, the rule might be different. 
 But wild animals, which are of any value, either for food, fur, 
 or otherwise, when once reclaimed or tamed, are properly 
 subjects of private property, and so long as they remain such, 
 a man's right to them is fully protected by the law. 
 
 CHAPTER XI 
 
 ABOUT DOGS. 
 
 The question of lial)ility for and pi-oteciion against dogs 
 has been a perplexing one from earliest times. The laws of 
 Solon — undoubtedly the wisest law-giver of his age — declared, 
 that, if any dog bit a person, he should be delivered up, and 
 bound to a log of wood four cubits long; and the Romans also 
 adopted the same law in tlieir " Twelve Tables;" while an 
 early law in Wales provided, that, after a dog liad bitten three 
 persons, he should be first tied to his mastei"'s leg, and then 
 killed. • 
 
 Owing to the naturally wild and fierce disposition of dogs, 
 it has not been generally thought necessary by legislators, in 
 order to make the owner liable, to prove that he actually 
 knew the dog was accustomed to bite, as it is in the case of 
 other domestic animals. The law presumes that the son of 
 every Puritan farmer has been brought up from boyhood to 
 repeat those lines of good old Dr. Watts : — 
 
 "Let dogs delight to bark and bite, 
 For God hath made them so." 
 
 Accordingly the owner is liable, if they do, whether his 
 education on this point has been neglected or not. And not 
 
AB'OUT DOGS. 43 
 
 only so, he must, in both Massachusetts and Maine, pay- 
 double damages for the pleasure of keeping such animals ; 
 and, after actual notice of his disposition, the damages may 
 be sometimes increased to threefold. And so comprehensive 
 is this law that, if your dog rushes out into the street, and in 
 mere play jumps at a horse's head, whereby he is frightened 
 and runs away, breaking the carriage, and perhaps the limbs 
 of the occupants, you are responsiljle for double the amount of 
 the entire damage, though it amount to several thousand 
 dollars ; for the liability of the owner is not limited to 
 damages from the bite of a dog, but extends to any direct 
 injury, however caused. Again, if your dog is at large, 
 although he is a good-natured Newfoundland, and, being teased 
 and irritated by young children at play, turns upon them, and 
 bites one severely, you may be liable to heavy damages, 
 although the dog was never known to bite before. 
 
 In a recent case in Massachusetts, a boy thirteen years old 
 met a large dog weighing about one hundred pounds, and as 
 the dog approached, the boy struck him with a stick about 
 three feet long, and thereupon the dog snapped at him, and bit 
 him on the leg ; but the dog had to pay for it, because the 
 jury thought the boy acted as most boys of his age would have 
 done! If he had been thirty-one instead of thirteen years old, 
 the dog would have come off victorious. 
 
 The old notion was that every dog was entitled to one Oite 
 before his owner could be made liable ; but this doctrine is 
 now exploded, and in these days every bite counts one, large 
 or small. And this is so, although the dog is duly licensed 
 and collared. The object of the dog-tax was not to exempt 
 the owner of a dog, when known, from his former liability for 
 all his dog's mischief, but to provide a fund for the remuner- 
 ation of the farmer, when the owner was not known, or was 
 not pecuniarily responsible. Accordingly, in Massachusetts, 
 any man whose animals are injured by a dog, may now have 
 either mode of redress, — he may file his claim with the select- 
 men, and take simply the amount of damages he may have 
 
44 FARM LAW. 
 
 sustained; or he may "go for" the owner of the dog, and get 
 double damages, if he can : but he cannot try both methods. 
 If he is paid his simple damage out of the dog-tax, the county 
 may compel the owner of the guilty dog to refund the amount 
 paid out. This choice of remedies, however, does not exist in 
 Maine, for in that state he must look only to the keeper of the 
 dog for redress. And if the keeper of the dog is • not the 
 owner, but merely harbors the beast, he is liable for the damage 
 done just the same. If one is injured in his own person, his 
 only remedy for remuneration is against the owner of the dog. 
 The "dog-law" does not include injuries to man, but only to 
 his domestic animals. Perhaps it should be extended in this 
 respect. 
 
 But no man is obliged to wait until the mischief is done, 
 and then seek redress by the law's delay. You may take the 
 law into your own hands, and kill any dog, licensed or not, 
 that suddenly assaults you while peaceably walking or riding 
 in the public streets ; and so you may if the dog is found out 
 of the enclosure or care of the owner, wounding, worrying, or 
 killing any neat-cattle, sheep or lambs. So as to a dog which 
 continually haunts your house, barking and howling day and 
 night, disturbing the peace and quiet of your family. But you 
 could not lawfully kill a neighbor's dog merely because he was 
 peaceably walking over your grounds without leave. 
 
 If a dog is not licensed, your right to kill him is much 
 broader. The law of Massachusetts says you may kill him 
 " whenever or wherever found." These are its exact words. 
 But if you think this authorizes you to kill him on his owner's 
 premises, and you should pursue him into his owner's house 
 and there kill him, contrary to his master's wishes, you might 
 find out your mistake by being compelled to pay, not only the 
 full value of the dog, but also for unlawfully entering the own- 
 er's premises. " Whenever and wherever found," therefore, 
 don't mean exactly what it says. Such are the quirks of the 
 law. 
 
 Again : do not think, that, because you can openly and pub- 
 
ABOUT DOGS. 45, 
 
 licly shoot an unlicensed dog which is hanging around your 
 premises annoying your family, you can therefore poison him ; 
 for tliat kind of physic is not to be thrown even to dogs, and 
 the mere exposing of any poison for that purpose, whether the 
 dog touches it or not, may cost you fifty dollars and the costs 
 of prosecution. And this is very moderate, considering, that, 
 for the malicious poisoning of some other domestic animals, — 
 even a sucking calf, — you may obtain, if you live iw Massa- 
 chusetts, a free residence in that splendid new State building 
 at Concord for five years^ or if you live in Maine you may be 
 a guest at Thomaston iov four years^ — that is, unless you see 
 fit to break out before that time ! This was delivered just 
 after several prisoners had succeeded in escaping fi-om the 
 State Prison at Concord, Mass. This much for the law of 
 dogs. And the only crumb of consolation I can ofter on this 
 subject is this : if two dogs, yours and your neighbor's, go off 
 on a joint raid on a flock of sheep, you are bound to pay only 
 for those your dog killed, and not the others, if anybody can 
 find out which was which ; whereas, if the two owners of the 
 dogs go out together to rob a melon-patch, one is liable for all 
 the melons carried away, although the other ate them all ; so 
 that in one respect the law seems to favor the dogs. On the 
 other hand, as a man is not liable for any sheep, fowls, or 
 other things which his mischievous boys wantonly kill when 
 coming home from an unsuccessful hunt, drunk or sober, in 
 this respect again the law is rather against the dogs. 
 
 However useful dogs may be, it was a principle of the old 
 common law of England, adopted in many American states, 
 that a man could not have any ownership in a dog, and there- 
 fore if I should steal your dog (instead of one of your chick- 
 ens), 1 could not be convicted of larceny for it. But in many 
 states a more sensible rule exists, either by statute, or other- 
 wise. 
 
46 FARM LAW. 
 
 CHAPTER XIL 
 
 LIABILITY FOR HIS 3IEX. 
 
 The liability of a farmer who employs many hands may 
 prove extremely onerous at times. As a general rule, he 
 is liable for all the injury they do while actually employed in 
 his business ; therefore if you send a boy to burn old brush, 
 and the lad leaves his work to look after his patridoe-snares or 
 rabbit-boxes in the wood, and the fire runs into the next field, 
 and consumes the crops or fence of your neighbor, you must 
 pay the bill, although you told him to watch it carefully, and 
 never leave it a minute. If you send a load of farm-produce 
 into town, and the driver falls into a doze and runs into an- 
 other team, you must pay for the broken spokes. If your 
 man, in going to or from the hay-field, carelessly swings his 
 scythe, and cuts an ugly gash in the leg of a passer-by, you 
 had better pay the doctor's bill, and be glad to get off thus 
 easy. If, in cutting your wood, a man accidently cuts over 
 the line, on your neighbor's lot, you are responsible, although 
 you told him where the line was. A short time since a man 
 was driving his master's horse and wagon through Bromfield 
 street, Boston, on his master's business, when the horse kicked 
 off a hind-shoe, which struck a large plate-glass window in a 
 store, and the owner of the animal had to buy another pane of 
 glass. And though your man shows a touch of maliciousness 
 in his act done in the prosecution of your business, and inten- 
 tionally runs into another team which somewhat obstructs his 
 way while driving your load, you may not screen yourself 
 behind his unnecessary and wilful violation of your orders. 
 Of course, in all these cases, you could compel the servant to 
 repay you all the expenses he had thus caused you by his mis- 
 conduct. On the other hand, to make you responsible for his 
 
LIABILITY FOR HIS MEN. 47 
 
 carelessness, he must have been at the very time on your busi- 
 ness. If he borrows your horse and wagon, and goes off on 
 pleasure, or business of his own, and runs over somebody, you 
 are not responsible merely because it was your horse and 
 wagon ; much less would you be liable if your servant took 
 your team without your knowledge on pleasure or business of 
 his own. 
 
 How it would be if the fellow was on his own business and 
 yours too, is a nice question, which might puzzle even a "Phil- 
 adelphia lawyer." In one instance a farmer lent his man his 
 team to go to town for a holiday, and asked him to stop at the 
 butcher's on his way home, and bring along a piece of meat 
 for nexi day's dinner. While fulfilling this order, the man 
 also took a little " fire-water," and soon after ran over an old 
 woman in tlie public highway ; but the master was considered 
 not responsible. Tiiis was, however, in the courts of the 
 Emerald Isle. 
 
 One more distinction on this subject it may be well to state ; 
 ^nd that is, that although an employer is responsible for any 
 careless injury his men may do to third persons, he is not 
 responsible for such an injury to other fellow-workmen. If a 
 hired man, therefore, by the very same act of negligence, in- 
 jures a co-laborer and also a bystander, the latter would have 
 redress against the master, and the other not ; for, by a species 
 of rather artificial reasoning, I think, a man, when hiring out, 
 is supposed in law to have anticipated any direct injury from 
 the carelessness of his co-laborers, and taken the risk on him- 
 self, whatever his rate of wages. This rule does not prevent 
 his wife from receiving for any to her caused by the careless- 
 ness of her husband's fellow-workmen. But, on the other 
 hand, he is not presumed to have contemplated any negligence 
 on the part of his employer ; and therefore he has a remedy 
 against the latter for his own personal carelessness, or in pro- 
 viding dangerous or insufficient machinery or apparatus, or 
 even in hiring notoriously incompetent or habitually careless 
 men. In one instance an employer was compelled to pay two 
 
48 FARM LAW. 
 
 hundred dollars to his hired man, who fell into a barrel of hot 
 water, set in the ground and carelessly left uncovered, but 
 which the man did not know of. And this last rule would 
 probably render the employer liable for any injury to his serv- 
 ants from dangerous or vicious animals intrusted to them to 
 take care of; at least, if the owner knew of their character, 
 and the man did not. But this whole subject is surrounded 
 with subtle distinctions; and my best advice to you is, that, if 
 you ever have such a case, do not rely upon this article, nor 
 upon any of those books called " Every Man his own Lawyer," 
 but go and get the best legal counsel you can find. 
 
 CHAPTER XIII. 
 
 ABOUT riRES. 
 
 If a careless hunter fires your woods, and much to his con- 
 sternation, the flames spread to your fields, and run along the 
 fences to your barn, he is responsible for the whole loss, 
 although he did his best to stay its progress. A man who 
 wrongfully sets in operation a dangerous instrument, must take 
 all the consequences diiectly caused thereby ; and this would 
 be so whether the fire ran along the ground continuously, or 
 whether the sparks were blown through the air a considerable 
 distance over intervening land, and then set fire to some per- 
 son's property. 
 
 But as any farmer has a legal right to burn the brush, old 
 stumps, etc., on his own land, if he does so at proper times 
 and in a proper manner, he is not responsible, if, by a sudden 
 rise of wind or other cause, without negligence on his part, 
 the fire is accidently communicated to a neighbor's premises, 
 and causes him serious injury. The gist of his liability (I 
 believe the lawyers call it) in such cases is some carelessness, 
 either in the time of setting the fire, or the manner of doing 
 
ABOUT FIRES. 49 
 
 SO, or in watching it afterward ; and the man who suffers is 
 bound to make it clear that the other was to blHuie. But even 
 your negligence will not always render you liable for the 
 spread of a fire, unless it was originally kindled by you inten- 
 tionally. Therefore, if your barn takes fire through your 
 carelessness with the lantern, or that of your man with his 
 pipe, and thereby your neighbor's property is also consumed 
 you are not bound to pay for it : the law seems to consider 
 that you have suffered enough for your conduct in the loss of 
 your own property; although there is some difference of opin- 
 ion about this. 
 
 Still less would you be responsible if the fire originated 
 from causes beyond your control. If your barn is struck by 
 lightning, or your haystack ignites by spontaneous combustion, 
 without any fault on your part, and the flames spread to the 
 adjoining owner's propei'ty, it would be hard indeed if you had 
 not only to lose your own, but to pay for his also. And I 
 suppose, even if you were careless in not promptly and ener- 
 getically putting it out when you could have done so, and it 
 spreads beyond your control, this would not render you liable, 
 as perhaps it might have done had you purposely set fire to 
 your brush-heap or stubble. 
 
 As to railroad fires the law is stated elsewhere. 
 
 CHAPTER XIV. 
 
 WATER RIGHTS AND DRAINAGE. 
 
 Water is flowing and fleeting, and the rights of farmers 
 therein are much of the same kind. If a stream ot water 
 flows through a farm, the owner has a right to use any reason- 
 able quantity of it as it flows along, for watering his stock, 
 irrigating his land, or supjilying his house for domestic use. 
 But he must not monopolize the whole: his neighbor's cattle 
 
50 
 
 FARM LAW. 
 
 must have water also. Perhaps if the stream be very small, 
 and his own reasonable wants consume the whole of it, he 
 might have a right to nse the whole. He may, to some ex- 
 tent, change the course and flow of the brook on his own land, 
 provided he turns it back into the natural channel before it 
 reaches the land below him. He has no right to conduct it 
 into his neighbor's land, without his consent, at a different 
 point or place than where it naturally entered therein. He 
 may build fish ponds, or otherwise dam up the stream, pro- 
 vided he does not thereby flow back on the land above him. 
 If he does so, he is liable to a suit for trespass, and finally, if 
 he continues it, to an injunction. A farmer acquires no right 
 to flow another's land without his consent, as a mill-owner has; 
 for the statutes giving such right, upon payment of a fair com- 
 pensation, generally apply only to mill-dams, cranberry-dams, 
 and the like: and, if your neighbor below you does so dam up 
 the stream as to flow back on yon, you may enter on his land, 
 and take down enough of the obstruction to relieve your land 
 of the overflow. 
 
 So, if a natural stream becomes obstructed by leaves, sticks 
 and rubbish, you have a right to go on to the land and remove 
 the obstructions, so that the water will flow as freely as before; 
 and the natural deposits you may place on the banks of the 
 stream. The same rules prevail as to artificial water-courses 
 or ditches, provided you have acquired a right to have a ditch 
 running through another's lands. But you have not ordinarily 
 such a right, unless you or your predecessors have purchased 
 the privilege of him, or have enjoyed it so long and under 
 such circumstances as to have thereby gained a prescriptive 
 right as it is called, or, lastly, have had the ditch opened by 
 commissioners appointed by the court under the general stat- 
 utes of Massachusetts. 
 
 The rights and liabilities of farmers in surface-water are 
 very different in some states from those in flowing or running 
 streams. By "surface-water" is meant, not only that which 
 comes from falling rains and melting snows, but also that 
 
WATER RIGHTS AND DRAINAGE. 51 
 
 which oozes- out of the ground from springs or marshy places, 
 and which finds its way over the surface, or througli the 
 tussocks, but is not gathered into a bed or current like a brook 
 or rivulet. When once collected into a stream, with a bed and 
 banks, it loses its character as surface-water, and becomes 
 subject to different rules ; but, so long as it is only surface- 
 water, any man on whose land it is has a right to detain and use 
 the whole of it on his own land and for his own purposes, and 
 is not bound to let any portion of it flow on to the land below, 
 unless he wishes. On the other hand, he may turn the whole 
 of it on to the premises below him, whether grass-land or 
 cultivated field, even though it be a serious injury to such 
 neighbor. In Indiana, a short time ago, a farmer owning 
 lands on the Ohio river, which were often subject to overflow, 
 planted a row of trees on his own land, and along the division 
 line between his farm, and the proprietor above him, whereby, 
 in times of great freshets, the drift-wood and rubbish, floating 
 along, was deposited on the land of his neighbor, and caused 
 him some considerable troul)le and damage to remove it, but it 
 was decided, at"ter a very elaborate argument, that the upper 
 proprietor had no redress. 
 
 If a farmer wishes to protect himself from mere surface- 
 water, he must build up some embankment at the edge of his 
 land, and stop the flow, as he has a perfect right to do, 
 although he thereby makes quite a pond above, and injures the 
 crop there. But the law in some states is not so. And as the 
 farmer may turn the surface-water from his own land into 
 yours, without being liable, so a highway surveyor may con- 
 duct the road-wash on to you, even though it sweeps sand and 
 gravel into your best mowing. If he turn a water-course on to 
 you in that way, you cannot sue him, but may in Massachusetts 
 appeal to the selectmen, under the public statutes, chap. 52, 
 §12 (in Maine, under R. S.. chap. 18, § 25) to have it changed; 
 but surface-water you must take, or dam it up : that you can 
 do, but you ought not to damn the surveyor for turning it on 
 to you. 
 
52 FARM LAW. 
 
 If a permanent alteration is made in the surface of the 
 road, by water-bars, spouts, etc., as to constantly turn the road- 
 water on to you, you may perhaps find some compensation 
 against the town under the public statutes of Massachusetts, 
 chap. 52, § 12, 15 and 16. 
 
 As to under-ground water, tlie law does not generally 
 recognize any right of ownership therein ; and consequently, 
 if your neighbor's well is fed by springs or under-ground rills 
 from your land, you may dig down on your land to any depth 
 you please, even near to the line ; and if, by chance, you cut 
 off the supplies to his well, and leave it dry, he must bear it 
 as well as he can. But you must be careful in digging not to 
 dig so low as to cause his land to cuve into your excavation, or 
 you may be responsible therefor. 
 
 And here I must give you a little caution ; for while the law 
 allows you to altogether divert the underground water from 
 your neighbor's well, it does not permit you to corrupt it by 
 placjig pig-pens, privies, etc., so near the border line as to 
 percolate through the soil and " foul the well." 
 
 CHAPTER XV. 
 TRESPASSIXG ON THE FARM. 
 
 The general rules in regard to trespassing on another's 
 lands are pretty well understood in the community, but on one 
 point there is sometimes an erroneous impression. It is often 
 thought, that, if a pei'son simply crosses your land for twenty 
 years, he thereby always acquires a right to continue the prac- 
 tice ; but this is far from being univei'sally true. The very 
 foundation of acquiring such a right (prescriptive right as it 
 is called) is, that the crossing must have been adversely to the 
 land-owner, contrary to his wishes, or at least without his per- 
 mission, 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, or by the 
 
TRESPASSING ON THE FARM. 53 
 
 mere indulgence, of the land- owner, and not under any claim 
 of right, it is wholly immaterial how long the custom has con- 
 tinued. Forty years' travel l)y consent of the owner would 
 not give any right to continue to pass after he had been for- 
 bidden to do so ; and, to avoid any misapprehension in such 
 cases, it is wise for the farmer to put up notices forbidding it, 
 as we so often see done. And this not only makes it clear, 
 that thenceforward the intruder is a trespasser; but, by a 
 recent law in Massachusetts, he is also made liable, after such 
 notice, to a fine of twenty dollars for wilfully crossing or enter- 
 ing upon any garden, orchard, mowing-land, or other improved 
 land, between the first day of April and the first day of 
 December. Maine also has a similar law. 
 
 By this law the wilful trespassing on such lands during the 
 summer and fall months, is made a crime ; and any constable 
 or other of&cer may arrest the offender on the spot, and take 
 him before some proper tribunal for trial and sentence. But 
 at all other seasons of the year, or as to any other kinds of 
 lands, such a trespass is only a civil trespass, not a crime, and 
 the only legal remedy is by an action for damages done, which 
 may l)e very unsatisfactory. 
 
 If, however, a man's object in coming into your premises is 
 to steal your fruit, cranberries, or other crops, that itself is a 
 crime, although he does not accomplish his purpose ; and you 
 may put him out by force, after notice to leave, using no un- 
 necessary violence. But you cannot lawfully set spring-guns, 
 man-traps, or other instruments which may do him grievous 
 bodily harm, without giving notice df such hidden dangers. 
 Perhaps if ample notice was posted up, of the existence and 
 location of such instruments of injury, a person trespassing 
 might have no remedy for his misfortune. But even this has 
 been pointedly denied in this country. For it is nothing less 
 than murder to deliberately and intentionally kill another, 
 merely for trespassing on your grounds. 
 
 The old school-books, in my early days, had a picture of 
 boys stealing fruit in the boughs of an apple-tree, with a far- 
 mer picking up stones, and a maxim, that, if words and grass 
 
54 FARM LAW, 
 
 did not answer, he might throw stones. But, if in so doing 
 you should liappen to put out the boy's eye, it might go hard 
 with you ; for you have not a right to kill even your neighbor's 
 liens while scratching up your melons and cucumbers. The 
 custom to do so, and toss the fowls over the fence, may afford 
 some satisfaction to the gardener ; but it makes him liable to 
 pay the full value of the nuisances, although he had repeatedly 
 warned their owner to keep them at home, or take the con- 
 sequences. 
 
 A farmer in Connecticut, who had been greatly annoyed by 
 his neighbor's hens scratching up his garden seeds, spread a 
 quantity of Indian meal, mixed with arsenic, on his own land, 
 which had the effect designed ; but he had to pay for the fowls. 
 Shooting an animal merely because it is trespassing on your 
 grounds, and injuring your crops, is not justifiable. But this 
 is not so as to a flock of doves, while busy pulling up your 
 early peas or sweet corn. While so engaged you may shoot 
 and eat them with impunity. 
 
 Whether this rule applies to an old cat which is after one's 
 chickens, I don't know ; but I mean to try it tlie first chance 
 I have. Not but what a cat may be in the protection of the 
 law on her owner's own premises, as a man in Canada recent- 
 ly discovered, when he had to pay ten dollars for the fun of 
 shooting one. But when she has a chicken in her mouth, or 
 is just ready to spring at one in your own yard, the case may 
 be different. And in the case of the fowls above spoken of, 
 the safer .way, instead of shooting them, would be to buy a 
 smart game cock that would soon lay them all out in wind- 
 rows, as a good old deacon I have read of did ! 
 
 The general rule seems to be that a farmer has the right to 
 kill the animals of another, if they are in pursuit of his own, 
 and there is reasonable ground to apprehend that they will 
 attack and destroy, or carry off" the latter. 
 
 This is clearly so in the case of trespassing dogs, cats, hogs 
 and such animals. The right to kill such animals is not con- 
 fined to the very moment when they are in pursuit, or about 
 to immediately attack the farmer's animals ; but if from their 
 
TRESPASSING ON THE FARM. 55 
 
 habits or former conduct, there is good reason to believe one's 
 own property is in danger, a man need not wait until the dog 
 has the lamb by the tliroat, or the cat has the chicken in its 
 mouth, before he can fire. 
 
 An interesting illustration of this right to kill other people's 
 animals recently occurred in the northein part of New Hamp- 
 shire. A farmer had a flock of geese swimming around his 
 pond, and hearing them all vigorously cackling one morning, 
 came out and saw four minks swimming after them in hot 
 pursuit, and within a rod of them. As soon as the minks saw 
 him they stopped pursuing the geese, and ran out of the water 
 on to a little island and then stopped a minute, but long 
 enough for the farmer to get aim, and he killed them all at 
 one shot. A law of New Hampshire forbids any man to kill 
 any minks, sable, or otter between May and October under a 
 penalty of ten dollars for every animal so killed. And the 
 farmer being prosecuted for this penalty, it was decided after 
 very elaborate examination, that he liad a right to kill them, 
 notwithstanding the law, if necessar}' to protect his own ani- 
 mals from destruction, and that it was not necessary he should 
 first try to drive his own animals out of harm's way before 
 killing their assailants. The decision in this case is very 
 elaborate and very interesting. 
 
 One of the most annoying forms of trespass to the farmer is 
 tiiat of hunting and fishing. Many persons seem to suppose, 
 tliat by force of some general custom, or otherwise, they have 
 a right to hunt or fish over another's ground as they please ; 
 but this is quite erroneous. In all ordinary streams and ponds 
 the right to fish belongs solely to the person owning the 
 adjoining land. 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 to do it. And, by a very early law in Massachusetts 
 and Maine, if a farm contains a " great pond," — i. e., a pond 
 containing over ten acres, — the public have a right of fishing 
 and fowling there, " and may pass and repass on foot through 
 
56 FARM LAW. 
 
 any man's 'propriety' for that end, so they trespass not on any 
 man's corn or meadow." 
 
 The recent laws authorizhig fish commissioners to lease 
 large ponds to private jjarties may, of course, modify the for- 
 mer rights of the public to fisli therein. 
 
 As to salt-water fishing, the law is somewhat peculiar ; for 
 although the owner of the upland ordinarily owns the land 
 down to low-water mark, as before stated, yet any other per- 
 son may go there, and dig clams or other shell-fish, if he can 
 do so by water, and without crossing the upland in going or 
 returning. The Legislature may sometimes abridge or modify 
 tliis right, and vest it exclusively in some person or persons ; 
 but the ordinary rule is as above stated. 
 
 Another still more common and annoying species of farm 
 trespassing, is that of berry-picking ; but this practice, 
 although so customary, is clearly contrary to law. • And not 
 only is the trespasser himself liable to the land owner, but all 
 who buy and consume the berries so picked, are in danger. 
 The blueberry-canning establishments of Jonesport, Maine, 
 were recently compelled to pay more than one thousand dol- 
 lars to the owners of wild land, over which the berrj'-pickers 
 had long roamed without leave or license, although the latter 
 had been paid in good faith for the berries as they brought 
 them in and delivered them to the buyers. 
 
 CHAPTER XVI. 
 
 OVERHAXGIXG TREES. 
 
 The question often arises, who owns the fruit of a tree 
 standing near the boundary line between two proprietors. It 
 is generally supposed that the fruit on the lirnbs overhanging 
 one's land belongs to him ; but this is an entire mistake. If 
 a tree stands wholly on your land, although some of the roots 
 extend into the soil of your neighbor, and derive support and 
 nourishment from his soil, he has no right to any of the fruit 
 
OVERHANGING TREES. 57 
 
 which hangs over the Hne ; and, if he attempts by force to 
 prevent you from picking it, he is liable for an assault and 
 battery. 
 
 In one instance a lady, while standing on the fence picking 
 cherries which hung over the line, was forbidden to do so by 
 the adjoining owner, who was at work in his garden ; and, in 
 the scuffle to prevent her, she received some bruises on her 
 arm, for" wliicli he iiad the pleasure of paying the neat little 
 sum of a thousand dollars. If your fruit falls into your neigh- 
 bor's lot, you have, I think, an implied license in law to go 
 afid pick it up, doing him no unavoidable damage ; but this 
 may not be positively settled as yet. 
 
 If, however, a fruit-tree stands directly in the division line, 
 and is what is called a " line-tree," both parties own the tree 
 and fruit in common, and neither can cut down the tree, or 
 seriously injure it, without being responsible to the other. 
 
 Sometimes persons are tempted to poison or secretly kill a 
 neighbor's tree of some kind, which stands near the fence, 
 and casts a baneful shade on their garden plot : but this is 
 dangerous business ; and the party doing so, in Massachusetts 
 Or Maine, may possibly find himself inside the county jail for 
 a twelvemonth, where the rooms are apt to be small, and not 
 always very clean ! The safer way in such cases is to cut off 
 the limbs which hang over your side, or dig down and cut off 
 the roots, which undoubtedly you have a legal right to do ; 
 but it would not be safe to use the limbs for firewood, or 
 otherwise convert them to your own use, lest you have to pay 
 their value, more or less. 
 
 While speaking of "overhanging" trees, I may also add a 
 word about shade trees entirely on your own ground. Every 
 man has a right to cover his own ground with fruit, forest, or 
 shade trees, as " thick as they can stand." And if so be a 
 neighbor's house is so near the line that the trees make his 
 house damp or unhealthy, he has not a right therefore to cut 
 down, or prune out the samg, but must bear the consequences 
 
 as well as he can. 
 
 One mora caution I must give you in regard to overhanging 
 trees ; and that is, if you have a tree near your line, which is 
 
58 FAEM LAW. 
 
 poisonous to animals, as the yew tree, for instance, and you 
 let tlie limbs hang over the fence so that a neighbor's cow 
 browses them, and dies in consequence, you are liable to pay 
 for her, for you must not allow such dangerous things to 
 spread from your premises. I suppose it would be different if 
 the tree stood far away from the boundary line, and the cow 
 strayed into your premises, and there committed suicide : the 
 verdict might then be, " served the owner right," he had no 
 business to let her trespass on you. That was the case once 
 where a man's cow strayed into a neighbor's sugar orchard, 
 and there drank a bucket full of maple syrup, which caused 
 her death. Her owner had no redress. I suppose it might 
 be the same if cows break into your potato iield, and kill 
 themselves eating potato tops, on which you have used " Paris 
 green." 
 
 CHAPTER XVH. 
 BEWARE OF TRAPS. 
 
 I do not propose to discuss at length the general laws of 
 purchase and sale, or of deceit and warranty, about which so 
 much may be said ; but there are two phases of special interest 
 to the farmer. One is the disappointment resulting from the 
 purchase of impure or spurious garden-seeds. It is now well 
 settled, that if a dealer in seeds sells an article marked and 
 put up under a certain name, and it is so billed to the pur- 
 chaser, this amounts to an absolute warranty or guaranty that 
 the seeds are what they were bought and sold for ; and, if they 
 turn out not to be, the farmer has a remedy against the seller 
 for the money he paid for the seed. And this is so, although 
 the seedsman was honest in the sale, and bought them for 
 exactly what he sold them for ; and the seller would have a 
 remedy back on the person who sold to him. But merely to 
 get back the money paid for the seed would fall far short of 
 the loss to the farmer. His time, labor, fertilizers, profits on 
 his crop, are all gone; and the question has been much 
 agitated, whether the seedsman is liable for all this loss. 
 
BEWARE OF TRAPS. 59 
 
 And it is now generally understood, that when he either 
 expressly warrants the seed to be of a particular kind or va- 
 riety, or when he so sells it without any reservation or limita- 
 tion, and thus creates an implied warranty, he is liable for all 
 the damages directly flowing from the farmer's use of such 
 seed. 
 
 In one instance a market-gardener bought of a seedsman 
 " early strap-leafed, red-top turnip seed," but which proved to 
 be " Russia late," not salable in market, and only fit for cat- 
 tle ; and he was allowed to recover of the seller the difference 
 between the value of the crop which was raised and a crop of 
 early turnips on the same soil, even though the seedsman hon- 
 estly thought the seed was as represented. And in case the 
 farmer is so imposed upon, and the seed proves entirely worth- 
 less, and his crop of no value, he can make the seedsman pay 
 not only the cost of the seed, but also for all the labor incurred, 
 and the fair profit he would have had from the crop, had the 
 seed been what it v.as represented to be. In one case, the 
 Shaker Society at Watervliet. N. Y., had to pay heavy dama- 
 ges, because a lot of seed which they sold as " Bristol cabbage 
 seed," came up a wild cabbage, running all to stocks and 
 leaves, caused by the fact that they set their Bristol seed cab- 
 bages in the spring, near several rows of " Red Dutch,'' and 
 the two varieties intermixed, producing a worthless cross. To 
 avoid this serious liability, seedsman at the piesent day very 
 often print upon their seed-packages that they do not warrant 
 any seed they sell, which may perhaps relieve tiiem from their 
 responsibility, unless they knew the seed was not true to name. 
 
 The other subject to which I alluded is the "lightning-rod 
 nuisance," so called. For several years past the agricultural 
 community has been overrun by swarms of unprincipled men 
 offering for sale " improved lightning-rods," " patent pitch 
 forks," "white-wire clothes-lines," "force pump washers," 
 etc. 
 
 With persuasive cunning they prevail upon the farmer to ac- 
 cept the agency for the sale of the article in his town or 
 county, with reckless assurance of the profits to be realized 
 therefrom. They ask him to sign a printed contract for that 
 
60 FARM LAW. 
 
 purpose, which he unsuspectingly does. The articles either 
 never come to hand, or, if so, they are worse than useless; 
 and the agent thinks that is the end of the transaction, and 
 writes to have the I'ubbish taken away. A few months after- 
 ward another man comes round, — a confederate rascal with 
 the former, — and presents the farmer with his printed promis- 
 sory note for a hundred dollars or more, and pretends he 
 bought the same in good faith, and demands payment. The 
 sio-nature to the paper is genuine, and the farmer is amazed to 
 know how it came there. Xothing but a law-suit will reveal 
 the fact that the strip of paper now presented has been cut off 
 from the bottom of his agency contract, and made to appear a 
 very different affair from the real one, and the present owner 
 is always ready to swear he is an innocent holder for value, 
 and without any knowledge about the origin of the note ; hav- 
 ino" taken legal advice, that, if so, he can probably recover the 
 amount of the note, notwithstanding the outrageous fraud, as 
 has been frequently decided. While in many states, so anx- 
 ious is the law to protect the honest farmer from the schemes 
 of such an unprincipled gang of swindlers, that it has decided, 
 that if the signer was not really guilty of negligence, in the 
 eye of the jury, in being misled by such a rogue, he is not 
 bound to pay the note to anybody, indorsee or not. 
 
 The honest farmer is in the hands of a set of accomplished 
 villains ; and in many instances their plans have been so well 
 laid, that either he is compelled to pay the whole note, or, to 
 avoid the expenses of a law-suit, compromise the claim. 
 Beware of these miscreants ; shun them as you would a I'attle- 
 snake. If there is one place hotter than another in the world 
 to come, they deserve that corner, living as they do upon pre- 
 meditated, cold-blo(?ded fraud and deception. 
 
 I have thus imperfectly touched upon some of the leading 
 rights and liabilities of farmers ; and if, in this brief space, 
 I have been able to impart any valuable information, or save 
 you from the many entanglements of the law, or even to inter- 
 est you but for the passing hour, my purpose has been accom- 
 plished.