UMASS/AMHERST 312QbbDD5aDH^HH LIBRARY OF THE ''^^-' ' MASSACHUSETTS AGRICULTURAL COLLEGE 73 5m.i2.'29. ^ B27 I880-IS93 V •! DATE DUE UNIVERSITY LIBRARY UNIVERSITY OF MASSACHUSETTS AT AMHERST H' PUBLICATIONS OF THE Massachusetts Society for Promoting Agriculture. Massachusetts Farm Law: A MONOGRAPH ON THE LEGAL RIGHTS AND LIABILITIES OF FARMERS. CONTAINING ABTICLBS UPON SUCH SUBJECTS AS THB FOLLOWING: How to Buy a Farm; How Far the Farm Extends; What a Deed of a Farm Includes; Hiring Help; Rights in the Road; Ways over the Farm; As to Farm Fences; Impounding Cattle; Farmer's Liability for his Animals; Dogs; Liability for his Men; About Fires; Water Rights, Drainage and Ice; Trespass- ing on the Farm; Exempt Property; Overhanging Trees TKlitb fllu0trattons anD Citations from ®tbct States, EDMUND H. BENNETT and SAMUEL C.BENNETT. SALEM, MASS.: 0B8EBVEB BOOK AND JOB PBINT. 1893. PUBLISHER'S PREFACE. The substance of the following pages was origi- nally delivered by Edmund H. Bennett as a lecture before the Massachusetts State Board of Agricul- ture, at Hingham, Massachusetts, December 5, 1878. The lecturer was at that time a member of the Board. And the circumstances under which the lecture was first delivered may account for the use of a familiar style. Agricultural and other journals throughout the country have reprinted it, and it has been cited in the opinions of the courts. In the present revision of the lecture some new matter and authorities have been added, and some slight changes made. The Massachusetts Society for Promoting Agri- culture publish the present volume under the title of " Massachusetts Farm Law." May, 1893. CONTENTS. CHAPTER I. HOW TO BUT A FARM, 9 CHAPTER II. HOW FAK THE FARM EXTENDS, .... 13 CHAPTER III. WHAT A DEED OF A FARM INCLUDES, .... 18 CHAPTER IV. HIRING HELP, 23 CHAPTER V. RIGHTS IN THE ROAD, ...... 28 CHAPTER VI. WATS OVER THE FARM, 31 CHAPTER VII. RAILROADS THROUGH FARMS, 34 CHAPTER VIII. AS TO FARM FENCES, 39 CHAPTER IX. IMPOUNDING CATTLE, 46 8 CONTENTS. CHAPTER X. farmer's animals, 49 CHAPTER XL ABOUT DOGS, 54 CHAPTER XII. LIABILITY FOR HIS MEN, 59 CHAPTER XIII. ABOUT FIRES, 62 CHAPTER XIV. WATER RIGHTS, DRAINAGE AND ICE, .... 64 CHAPTER XV. TRESPASSING ON THE FARM, ..... 69 CHAPTER XVI. OVERHANGING TREES, 76 CHAPTER XVII. PROPERTr EXEMPT FOR DEBT, ..... 77 CHAPTER XVIII. BEWARE OF TRAPS, 80 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 bar- gain 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 ac- cepted and he is notified thereof. And although, in 12 Johns. 190. ^ . . => ' 4 Johns. 235. making his offer to sell, he should expressly give you a certain number of days in which to decide whether to take it or not, he may. nevertheless, if you have not accepted in the meantime, change his mind 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 disappointment. 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 ex- pense in buying stock, tools, agricultural implements, etc., to carry on the farm, and should even move your family there to take possession, the owner 10 FARM LAW. 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 46N. Y. 467. his keeping his word. In some states, although the bargain 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 Browne on St. equity will compel the owner to make a conveyance, aiof' '^' ^^ '^^ ought to do without such compulsion ; but this may not be universally so, and is always an expen- sive 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 dangerous 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 particular time is given 3'ou in which to accept an offer to sell, you should be particular to signify your acceptance ,„ -nrr 1, nn. strlctlv withiu thc tiffic, and to do so entirely uncon- 17 Wall. 38i. -^ 62 Me. 3(!o. ditiouallv and without any qualifications, but exactlv "55. as it was made. In one instance a man had ten days in which to make up his mind, and on the night 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 26 Miss. 309. costs of his suit. In another case A wrote to B he would sell him his farm for three thousand dollars cash. B wrote back immediately he would take it, if A would make out his 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 oifer^ HOW TO BUY A FARM. H because he did not enclose the cash in his letter, but asked A to carry his deed to a third person for exam- ination, and consequently that A might withdraw and sell to another party. 53 Me. 511. If the negotiations for a farm are by letters, some peculiar complications may arise. It is generally understood that when a man offers to sell another a farm by letter, the bargain is com- pletely closed the moment the other deposits his letter of acceptance in his post-office, duly directed to the former. After that time neither party is at liberty to change his mind or retract his steps. And this is said to be so although the letter miscarries, or the mail is robbed, and so the seller never hears that^j^ ^^ Y. 441. his proposition has been accepted at all. 4E^d1v^216 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-fulfil- ment 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 very strange, but I fear such is the generally established rule. As the lawyers say, ita lex scripla est. If it be so, it is, like some other things written, " hard to be understood ! " If that law applies to all kinds of contracts I suppose if a young farmer sends a note to his best girl, offering to marry her, and she in- stantly replies " Yes," but the sweet note is lost in the mail and never reaches the party intended, and tired of waiting, he marries the second best, the first one might come down on him for breach of promise. Another singular situation might arise from the prin- ciple above stated. Suppose the would-be buyer 12 FARM LAW. of a farm changes his mind immediately after his letter of acceptance has been sent off, and telegraphs the owner that he declines 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 attached, or it is not sutficient. 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 everywhere 12 Met 157 necessary that a deed should be witnessed or ac- 6 Pet. 136. knowledgjed, and recorded. These last two requisites 66 Me. 226. ^ . , . , . may be essential 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 the}^ should never be neglected ; and my first advice to you is, that, if you have any unrecorded deeds among your papers, you attend to that duty forthwith. CHAPTER II. HOW FAR THE FARM EXTENDS. Having once obtained a sufficient deed, the next question seems to be how far the farm extends, or its projjer boundaries. Three circumstances have more or less weight in determining this question : 1. The number of acres stated in the 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 impor- tant, and, in case of any difference 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 in- cludes all the land inside of those monuments, all of p„J^^'"^-*J^- ' 2 Story, 278. which can be identified, although it may be many 29 ind. 574. more acres than the deed calls it, and, on the other hand, it will really convey no more, although the number of acres within such bounds be much less than stated in the deed. So, if the monuments named are fixed and definite, they control 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 ninet}" feet square, and not a hun- 14 FARM LAW. 6 Mass. 13. 2 N. H. 303. 8 Wend. 190. 19 Pick. 387. 2 N. H. 287. 5 Mass. 355. 27 Gratt. 721, 2 Johns. 37. 102 Mass. 217, Allen, 212. 9 N. Y. 183. 2 Allen, 212. 5 Allen, 324. 8 Allen, 324. 102 Mass. 217. 63 Me. 12. dred feet ; and, vice versa, if the lines are depcribed as only ninety feet long, but the given corners are a hundred feet fiom each other, the deed covers a lot a hundred feet square. The quantity of acres mentioned is the very weak- est 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 com- monly 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, 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 contained only 421 acres, but the buyer had no redress for the difference. So much more important are the known monuments and boundaries than the number of acres stated, that, even if the vendor fraudulently and in- tentionally overstates the quantity, in order to de- ceive the purchaser, the latter has no redress, if so be the other truly pointed out the boundaries in mak- ing 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 bar- gain. And, while speaking of fraudulent statements, perhaps I ought to warn you that fraudulent misrep- resentations by the seller of a farm, as to how much hay or wood it will cut, how much stock it will keep, 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 2inj redress, when you find out the deception. HOW FAR THE FARM EXTENDS. 15 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 ^P.'V?^^'?SoI^' ' _ 5() N. Y. 83. little or no notice of. On the other hand, if he should falsely state that the farm Jiad cut fifty tons of hay, when he knew it had not, his deception would make him liable ; and the line is so thin ^,9 ^®4t?^1;. ' 40 N. H. 51*. between actionable fraud and the contrary, that ex- periments in that direction are rather dangerous. It is not wholesome to always dwell in the twilight. If a boundary line runs to a tree, rock, stump or other similar natural object, it ordinarily goes to the center of the object ; if it runs by a wall or fence, it is Alien, i46. passes along the middle of it, and not by the side, which, in a " Virginia fence " might be of some con-4 Gray, 220. sequence. That such a fence, six or seven feet wide, is a lawful fence, see Ferris v. Van Buskirk, 18 Barb. 497. So if the farm bounds by or on a brook, river, stream, etc., it usually extends to the middle of the 16 Me. 245, 357 current; not always to the middle of the tvater^ butecow. 5i8. generally to the thread of the stream, — adfilum aqua. 153 iv^ss^fys. 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 unnaviga- ble river, directly in the channel, so as to lie partly on each side of the original thread of the river, such island will be divided between the opposite proprie- tors, exactly upon the line of the former thread of the stream at that place. 17 Pick. 41. Whereas, if the course of such a river changes, and cuts off a point of land on one side, thus making an island, such island still belongs to the original pro- prietor ; and in such case, if the old bed of the river, being gradually deserted by the current, fills up, and new land is formed, such newly formed land is to be 16 FARM LAW. 9 Ciish. 544. 9 Gray, 269. 7 Allen, 167. 54 N. Y. 377. 9 N. H. 461. 9 Conu. 38. 25 N. J. 525. 3 Scam. 510. 147 Mass. 64. 105 Mass. 355 7 Cush. 53. 8 Me. 85. .34 Me. 25. 36 Me. 313. 17 N. H. 526. 1 R. I. lot). 7 Met. 322. 136 Mass. 39. divided between the opposite owners, as above stated, 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 center 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 useful for navigation, boating, sailing, and the like. As to farms bounding on the seashore, some differ- ent provisions exist in some states. That strip of land between high and low water mark, generall}'' termed " the flats," is a frequent sub- ject of contention ; and the question is often made to whom it belongs, —whether to the owner of the up- land, 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 liigh and low water mark, so that if sea- weed, or other such thing be thrown up there by the tide, any one may take possession of it, and he who first gathers it lias an absolute right to it. By force of a very early law in Massachusetts, and some other sea-coast states, if a deed describes the farm as bounding '• Iw the sea," " by the salt water," " bay, harbor, cove, creek, stream, river, or tide-water," it generally includes the whole flats down to the ex- Irenie 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 neighbor- hood to collect sea-weed in such places, is of any validity in law. On the other hand, if the deed now FAR THE FARM EXTENDS. 17 bounds " by the shore," " beach, strand, flats, marsh, I4i Mass, 97. or cliff," it extends only to high-water mark, and does not give any right to the flats. iscTra* ^254 "While yet again(such are the niceties of the law), if the phrase of the deed is " to the beach or sea," " to the 6tea-shore," " to the sea or flats," the grantee owns down to low-water mark, flats and all. In view I ^"^h. 195. ' 5 Gray, 328. of such nice and subtle distinctions (though founded on better reasons than are apparent), one is tempted to exclaim with the Earl of Warwick, in Shake- speare's Henry VI. : — " Between t\YO hawks, which flies the higher pitch ; Between two clogs, which hath the deeper mouth : Between two horses, which doth bear him best; Between two girls, whicli hath the merriest eye ; I have, perhaps, some shallow spirit of judgment, — Bxit in these nice sharp quillets of the law. Good faith, I am no wiser than a daw." CHAPTER III. WHAT A DEED OF A FARM INCLUDES. 1 10^^146. Of course every one knows it conveys all the 43N. H. 306. 1 11 1 N. Y. 669. fences and stone walls 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, ^TT-,, .... l^ut had been taken down and piled up for future 2 Hill, 142. ^ ^ 46 ni. 163. use again in the same place. But new fencing ma- te in. 480. terial, just bought, and never attached to the soil, 2 Scam. 283. would not pass. So piles of hop poles stored away, if once used on the land, 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 of the farm might iLans. 219. take them away. Standing trees, of course, also pass as part of the land ; so do trees blown or cut 54 Me. 309. ^q^^^^ .^^^^d stin igft in the woods where they fell, but not if cut, and corded up for sale ; the wood has 14 Ark. 431. then become personal property. As to standing trees, let me say here, if you wish to buy a lot of standing trees without buying the land, you had better make your bargain in writing, lest the other party change his mind and refuse to let you come on his land to cut them, which he might do before they were cut ; and your only redress would be to 15 Gray, 441. ^^® ^^^ ^^^ damages, but you would lose your trees. iL'^i®°' ItJ.' On the other hand if you had actually cut them or a 153 Mass. 390. -^ -^ part of them before he notified you to the contrary, you would still have a right to go on to his premises and draw away the trees which had been cut with- WHAT A DEED OF A FARM INCLUDES. 19 out being liable as a trespasser, if you did no unnec- essary damage. If there be any manure in the barnyard, or in a compost-heap on the field, ready for immediate use, y'lf^HTsoa! the buyer ordinarily, in the absence of any contrary 2 Hiii,W2.^ agreement, takes that also as belonging to the farm, <58 Me. 275. f , . , , ./- , , 1 11 Conn. 525. though It might not be so, ir the owner had prev- iously sold it to some other party, and had collected 43 vt. 95. it together in a heap by itself, for such au act might be a technical severance from the soil, and so con- - ' , „ fi4Me. 410. vert real into personal estate ; and even a lessee 01 a 21 Pick. 367. 1 farm could not take away the manure made on the 15 wend. m place while he was in occupation. Growing crops ^^ ^'^jj^^^fg. also pass by the deed of a farm, unless they are ex- ^^ ^p|^n^*"gt presslv reserved : and, when it is not intended to 262. , . , /i 1 1 • , 1 1 • 7 Watts, 378. convey those, it should be so stated m the deed it-os in. 106. self: a mere oral agreement to that effect would not " be, in most states, valid in law. Another mode is to f^ %^^^, 278. stipulate that possession is not to be given untilg,^^- ^•^'^^• some future day, in which case the crops or manure '^^ ill- *<''''• V, .• . • 5Eng. 9. may be removed beiore that time. Farmers frequently reserve, when selling a farm, or lot, the right to remove the wood, stone, or timber within a certain stated time. The question often arises whether the same is forfeited, if not removed within the time allowed, or whether they may be law- fully taken away afterwards. Apparently this de- pends much upon the peculiar language used in the reserving clause. In ordinary cases areservatiou of a ']'3'^^e.^22. mere right to cut and carry awav trees within a'i^^J^-^^-^ " _ " 2Keyes, .y23. stated time, expires in that time and removing after- ^ Sandf. Ch. wards would be a trespass. While undoubtedly a 2 Barb. 622. reservation may be so worded, as to retain an abso- lute and indefeasible title to the things reserved, for- ever ; and the permission to remove may be put in the form of a stipulation merely, a breach of which by re- 20 FARM LAW. moving after that period, might render the party liable to some inconsiderable amount of damages. but i2Vroom, 203. the propei ty itself would not be wholly forfeited. But this distinction is very nice, and to safely secure the perpetual right, requires as wise a pilot as to steer between Scylla and Charybdis. Don't employ a bungling justice of the peace to write that deed ! 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 9 Conn 374 ^^® buildings on it belonging to the grantor, wheth- er mentioned or not ; and this rule includes the lum- ber and timber of any old building which has been so'Pemi^^lt ^^^^^ down, or blown down, and been packed away 185. for future use on the farm. 23La.An.284. -r, t i i 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 remain the builder's per- 6 Greeni. 452 sonal property; and some think the deed would not 38 N. H.431. ^ jr ./ ' 14 Allen, 124. couvcy thesc to a third person, since such buildings 121 Mass 559. 'are personal property 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 L*^*i™^*^o^*" premises. But some courts decide that the honest 10 Me. 429. ^ buyer of the farm would take all the buildings on it, 161 Mass. 560. and if they did not iustly belonor to the seller, the 127 Mass. 542. .t j o 128 Mass. real owner must sue him for wrongfully selling prop- 51 Me. 160." erty not his own. As part of the buildings con- veyed, 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 WHAT A DEED OF A FARM INCLUDES. 21 the house, but not yet attached or fitted to it. Light- ^^o ^'^t- 233. niiig-rods also go with the house, if a farmer is fool- ish enough to be overcome by those smooth tongued lightning-rod agents. A brick furnace in the cellar is considered a part^j,, j^ Smitii of the house ; and in Massachusetts this rule applies ^'^J^- „„. ^ ^ 75 111. 38o. to portable furnaces, but this may not be everywhere i4i Mass. 557. so. An ordinary stove, with a loose pipe running 39 Conn. 362. . . 127 Mass. 125 into the chimney, is not; while a range or grate set 2i Wemi! 191! in brick-work is. Mantel-pieces so attached to the 7 ^x^ss. 432. chimney as not to be removed without marring the :)'y^-^^^^^- plastering, go with the house ; but, if merely resting on brackets, they may be taken away by the former owner without legal liability. lam inclined to be- ^^^ ^^'^■'^®- ^^'*'- lieve that a deed of a house does not include the sfas- 1-7 Mas;^. 125. n ^ ■ ■, ■ ■ ^^ i n f 79 Penn. St. nxtures therein, and it is generally understood, that, 403. ./.I ,. • I • n . 1 10 Rich. 135. 11 a lessee puts in his own gas-nxtures, he may re- 40 Mo. yi. move them when his lease expires. The pumps, iqs Mass. 193. sinks, etc., fastened to the building, are a part of it ^ ^'^®''' ^*'"^' in law, and so are the water-pipes connected there- ^9 Mass. 457. with bringing water from a distant spring. A wood- 97 Mass. 133. en cistern in the cellar, standing on blocks of wood, probably falls within the same rule. If the farmer 40 Me. 310. 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 his men to dinner, ^g p^^j^ 3x4 A cider-mill goes with the apple-orchard, and not ^^^^^^^^^'^•g^^*- with last years' crop of apples. If he has a cattle- ,^ ^- „ .„, , 41 N. H. o04. barn on the premises, the tie-up planks, stanchion- timbers, tie-chains, and hinge-hooks used for fasten- ing the animals in their stalls, belong to the barn, and not to the cattle. If the farmer indulges in orna- mental statues, vases, etc., permanently erected, and resting on the ground by their own weight merely, and sells his estate without reservation, these things 22 FARM LAW. 12 N. Y. 170. go with the land. But even this might not be so, if the article had just arrived, and never been placed 17N.H. 282. 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 im- provements 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 HELP. 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 labor knows full well, that if a man is hired without anv 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 en- gages to work " for a year, " but leaves without good g y^';'^.^^''^''' cause at the end of eleven months, he is not, in most ^,9.^'*^" -P^^ 34 Me. 102. States, legally entitled to any compensation for what 34 Mo. 79. 19 Pick. 528. he has done, but forfeits the whole. Some states li) vt. sosf however. New Hampshire and Kansas for instance, 'e n. H.481. allow the laborer to recover a fair price for his labor ^^ NeT/ ^ in such cases, deducting any damages he may have ^^^^'^^ ^^^• caused his employer, by not working out his full time. This view has a strong smack of justice in it, though it does not yet seem to have been very gen- erally adopted. But the rule first stated generally prevails, whether the laborer has agreed to stay for the entire year at one round sum, or for a year at the rate of twenty dollars a month ; although, if the || johns.^337. farmer had paid for each month's work as it came due, he could not probably recover it back, even if the laborer afterward wrongfully left him before his time was out. And, if he has given a note for the 17 vt. 355. amount already earned, he must pay the note, not-^ ^"^^•^^^" withstanding the subsequent failure of the other part}' to work out his full time. But if nothing has 29n!y.^375. 24 FARM LAW. 4 Wend. 605. 12 Johns. 165 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 leav- ing him without help at a critical time in the year j 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 bis place, he can recover of the la- borer the extra twenty dollars a month for the bal- ance 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 specific thing you hire a man to do. If he engages 13 Johns. 94. 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 twent}^ feet deep for twentj'-five dollars, and voluntarily quits without good excuse when the job is half done, you are not obliged to pay a single 2 Mass 147 ^cnt for what he did do ; although, if he had substan. 11 Gray, 396. tially 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. If 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 vol- untarily quits without cause), but might recover whatever his services were really worth to the farm er. On the other hand, if the laborer has good cause for leaving, he may do so, and compel the employer to pay for the time he actually did work. And among the well-known excuses for leaving before 7 Pick. 181. 9 Allen, 355. 20 Conn. 312 31 Vt. 162. HIRING HELP. 25 the orisrinal bargain is completed, are sickness of theii ]^^°'-**^- ° ° ^ 25 Conn. 188. hired man, or his physical inability to labor, or the22Me. 53i. . 20 N. Y 197. prevalence of some dangerous epidemic in the family 21 wise. 395! or in the vicinity, which might render it hazardous *' ''^ ' for the man to remain ; such as cholera, small-pox, 43 Me. 463. and the like. Any improper treatment by the em- ployer, as scarcity of suitable food, is also deemed sufficient excuse for seeking other quarters. And even though the laborer so misbehaves him- self 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. 11 Allen, 201. 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 27 vt. 645. 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 (which some people think about the same thing), 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 un- ^ wend. 515. necessary 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 ^^li- 1 Browne* "9. mals, ma}'^ undoubtedly be required on Sunday. And ^. j^^^^j ^^.^ any work done on Sundays, ordinarily comes under the regular contract, and not as extra work. 4Kans 138 Difficulty with another laborer is not a good ex- cuse for leaving without permission ; but it is always ^^ y ^.^ a question for the jury to decide whether the man 26 FARM LAW. 14 Gray, 454. j^as good cause for leaving, and their sympathies be- ing with the person employed, they usually think the laborer is worthy of his hire. The cheaper way gen- erally 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 fulfill 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 reason, if the bargain 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 mak- ing the bargain, and the contract is not written down and signed (which nobody ever thinks of doing), it 16 Conn* 24(5. is not binding on the laborer, and he can break it 27^1^' ^isi from a mere whim, and still make the farmer pay for . the time he did work. In like manner, if the la- 19 Pick. 572. borer is under twenty-one, he is not bound by his bar- is Conn. 337. gain, but may desert when he pleases, and recover i^Dem?.'375. "backpay." And this is so, although the young 37 vt^647^' ^^^ appears to be of age, or is married and has a 41 N. H. 346. family, or even though he falsely stated he was over age, and able and willing to make as good a bargain 11 Cush. 40. ^s i^ ^^^^ ^ century old. 10 N. H. 184. Laborers sometimes make a contract that if either 14 Vt. 447. 12S.&R. 399. 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 dis- 29 vt. 219. satisfied or not. 35Vt. 297. ^ .„ , . 1 J . , But even if you have a nominal remedy against a laborer who has left you unjustifiably in the midst of his contract, this so often proves practically worth- IIIRINC. IIELl*. 27 less, that the law also gives yoii a riglit 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 hi- borer to leave his present employer, when his tim ; is out, or if he is only employed from day to day, and under no legal obligation to remain longer, but en- ^j^ j!f ^ 49, ticing him away during his contract for a stated period 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 inconvenience and loss he may there- by cause to the person whose men are thus induced to break their contract with their former employer. i07 Mass. .555. *• •' oCi N. H. 456. It is for this reason that combinations among work- 15 Barb. 499. men for a strike, and to induce fellow workmen, by intimidation or otherwise, to forsake their employers, are clearly illegal, and render the parties involved liable both civilly and criminally. Such associations lor. Mass. 1. ^. ^, p , 3 Pitt. sb. 14:3. are more common among operatives than farm la- borers ; but probably the same rules apply to both. A few years since, in Nebraska, a number of la- borers conspired together to quit work simultane- ously, and return the articles they were at work upon, in an unfinished and worthless condition. They did so, but they were obliged to pay several hundred dollars damages to their employer. 9 Neb. 390. CHAPTER V. RIGHTS IN THE ROAD. 143 Mass. 9. 2 Wall. 68. 34 Vt. 289. 37 N. Y. 251. Mass. G5. . 1. 404. IN. H. 16. 125 Mass. 216, 43 Me. 322. 38 Conn. .50. 44 Vt. 49. 1 Cow. 238. 8 Met. 576. 8 Allen, 473. 1 Penn.St.336 12 Met. 53. 16 Mass. 33. 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 any thing 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 high- way surve3^or, or other similar officer, to use such materials for the repair of the road ; and these mater- ials the surveyor may cart away, and use elsewhere on the road, but he has no right to use them for his own private purposes. No other man has a right to feed his cattle on your half of the road, 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 suit- able place, and if they are lost or injured it is not his fault. The owner of the 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 person has a right to cut or lop off the limbs of your RIGHTS IN THE KOAD. 29 trees in order to move his old barn or other buildings alono- the hidiway ; and even if the owner of the**^"^^'- ^^i^- O D .' 7 \)i Mass. iJ-i. 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 traveler can hitch his horse to your trees in the sidewalk, without being liable, if he gnaws the bark or otherwise injures them ; and. you may untie the horse, and remove him to some safe place. If your 54 -^^^ ^q well is partly on your land, and partly outside the fence, no neighbor can use it, except by your per- mission. Nay, more ; no man has a right to stand in front of 3^our laud, 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 pass and repass in an 11 Barb. 390. orderly and becoming manner, — a right to use the road, but not to abuse it. One judge thought that if a strolling musician stops in front of a house, and plays a tune, or sings an obscene song under the window, he would be liable as a trespasser on the road. It ou^ht to be so, ,, x. , ,..„ ^ o ' 11 Barb, 393. anyway. In one case, a man stopped in the highway, in front of a house, and used vulgar, obscene and pro- fane 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 by the use of force. ^q n c 351 Perhaps it may be well to state here, that, if the highway becomes suddenly impassable by heavy snows or deep gullies, a traveler may turn aside into your adjoining land, without being liable as a tres- passer, if he does no unnecessary injury. But, not-" Cush. 408. withstanding the farmer owns the soil of the road, '' urio" es.^*^' even he cannot use it for any purpose which inter- feres with the use of it by the public for travel. He 30 FARM LAW. cannot put his pig-pen, wagons, wood, or other things there, if the highway surveyor 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 traveled path), and a trav- eler runs into them in the night, and is injured, the CoDn. 225. 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 4 Gray, 215. * right to put the terminal post of his front fence partly on his neighbor's land, the same being no part iLans. 70 ^f 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. As to shade and ornamental trees standing in the 'highway, the power and control over them is now by statute largely vested in the authoriiies of the town or city ; and it would not be safe for the farmer to remove or trim them without permission from the proper authority. CHAPTER VI. WAYS OVER 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 purchase or grant, it must have been by a regular and complete 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 thougli fully paid for, be in law revocable, — a mere license 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 no longer. Being a hind of in- terest in land, the strict law requires it to be con- veyed by a deed. 2 Gray, 302. r, rr,, T , 1 . . .2 Allen, 578. I. ihe second mode, by prescription, requires 4 R. i. 47. length of time, — generally twenty years, but in^sMe. 257. * some states, ouly 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 peaceably used, but against your protest, or if used by your tacit consent, the use would not 8 Gray, 441. ripen into a legal right, however long continued. ^^^' And, if used under all those conditions, it must have 32 FARM LAW. 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 con- venience suits him. That would be an intolerable ifv^'m" burden to the farmer. To gain this right by twenty years' use, it is not necessary that any one owner should have traveled 2 Aiieu, 543. j^ twenty years. If successive owners have unitedly 19 vt. 1(34. used it for that period, it would be sufficient, so far 3 Day, 258. , , ,. . . , . i -i- i • 31 Conn. 531. as length 01 time is concerned. And it this prescrip- tive 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 per- son to continue to use it for all purposes, after the H. ^ -.^.^ wood had been all cut off, and the lot covered over 11 Gray, 150. 15 Gray, 387. with buildings. lCh.Div.362. *. -, -, T •. • u 3. The third mode, by necessit}^ 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 22 N. Y. 217. fro ; otherwise, his land would be useless. At pres- 27 N. H. 448. 23 Penn. St. ent he can't reach it by balloon to any practicable I9"wend. 507. pui'posc, and therefore he must cross your land. So, 4 Bush, 317. •£ y^^^ ^^Y[ a man all your front land, retaining the back part, and have no way out except over the part sold, you retain a right to cross the lot sold, though 56N. H. 306. your deed in such case says nothing about it; and ecush. 132. tWs is so, even if in your deed you warrant the land i Gray 297. ^o 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 high- way is afterward laid out, touching the back land on the other side, or if the owner of such back lot after- ward buys a lot adjoining it, and between it and a highway, he can no longer cross over your land as WAYS OVER THE FARM. 33 before, but must go out the other way. And so lonsr i-isiNiass m , . . ° l-l Gray, 126, as he does have such a ri2"ht, he must go in such a is Cdnn. 321. 47 M TT ^^0 place as you designate, if it be a reasonable place. 29 Tex. 78. If you mark out a road or a way along the fence, or on the poorer ground, he should confine 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 miry 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 75 ^'^y' 474 for him, and rake out the sticks and stones. But if you actually obstruct his usual road, and perhaps if it becomes suddenly impassable by natural causes, he would have a right to deviate to one side until he has opportunity to remove the obstructions or make 8 Pick. 339. repairs. 2 Alien, 546. 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, yon 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 ^he-J.^^j^^^^^jg^i- other party leave them open, and cattle get in, or ;W n. h. ssp. yours get out, he is liable to you for the damage 1 Lans. 04. ^ , . , ^ *' 47 N. H. 301. which ensues. 45Ma. 357. CHAPTER VII. RAILROADS THROUGH FARMS. Many farms, now-a-days, especially in the valleys, have one or more railroads crossing them ; and as such roads 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 gen- erally 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 inci- dental rights thereto. If the farmer gives the com- pany a deed of the land, of course they have the same absolute ownership as any other purchaser i^N^Y^i"! "^^^^^^ have. And in some states this may be so when the land is seized and condemned by the rail- road 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 28Vt^87^^" upon its surface, and the minerals below it, belongs 39 N. H. 5iM. to him, and the company have only a right of way 42 Aia.(N.s.), ovcr the surface. 83. 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 char- acter of railways, and the necessity for an exclusive RAILROADS THROUGH FARMS. 35 use and occupation of the road by the company, the land owner might not have, as against the company, a right to enter ad libilum, and cut and carry away what was growing thereon, or remove the soil, turf, .^ 42 Vt. 265. 6tC. 32 Vt. 43. And of course the company have a right to cut ^ ^•''^y- ^^4. 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. ^^ Cush. 6. 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 annoy- ances necessarily incident to such a use of his prop- erty ; but it is quite universally established that the legislature have a right to grant railroad companies such powers, mainly because, though the direct ob- ject of the stockholders 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. Be- ^aiiw^ivs^voi ing, however, a power contrary to common right, it i, chap. XI. 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 actually need for operating their road. They would have no right to seize and take possession of land wholly out- side 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 even take possession ; M'hile in others, they have a right of immediate possession, leaving the 36 FARM LAW. damages to be paid for afterward, as the parties may agree, or a legal tribunal determine. The ultimate fee of the road-bed therefore, gener- ally remaining in the former owner, if the road is discontinued, or the location entirely changed and abandoned, all land taken by law reverts to the for- mer 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 high- ways, etc. Such being the respective interests of land owner and railroad 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 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 company is liable for any injury to the adjoining owner's cat- Raih^a*^s^voi *^® °^ beasts whicli stray on to the road, through I, ch. XVIII. a defective fence, and are there killed or injured by 8 Barb.358,:!90 . . ' . . 35 N. H., 169, passing trains, whether there is, or is not, any neg- 5ind. 111. Hence 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 Redfieid on ^^^J stray upou the road, and are injured, the com- cifa'^^^xvm P^^^ is not liable unless guilty of negligence in run- XIX. ning the train. And even where the law actually requires the rail- road company to keep up the fences, that applies only RAILROADS THROUGH FARMS. 37 to cattle belonging to the adjoining owners, or law- fully on their lands, by their permission. It does not apply to cattle of third persons remotely situ- ated, that have strayed away, and wandered on to the railroad, and are 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. supra.gsMass. These are the general principles applicable to this subject, but it is so much controlled by local statutes and decisions, that it would be impracticable and confusion to discuss it further here. Another important question arising about rail- roads, is their liability for fires, communicated by their passing locomotives to the woods, pastures, or buildings of farmers along the route. Primarily, a railroad company is not liable for fires, unless caused by some negligence or carelessnesss of their employes. Formerly, and antecedently to any stat- utes, railroad companies were not liable for fires caused by their locomotives, without proof of some negligence, either in the construction or mode of running the engine, by which the fire was caused, oris Barb, so! otherwise. But as the liability to such fires was so jg q°^^' \l^' great, and the amount of damage so caused was very^J j^^' ^fvo extensive, it became necessary to enlarge their liabil- 33 Iowa, I87. ' . , ^ ., T (JO Mo. 227. ity; and now in some states, by statute, railroad cor- 4 Neb. 268. porations are liable for all damages to the buildings or personal property of land-owners along their route, arising from fire 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 Massachusetts. 8 Aiienl 438. And this statute has a very liberal construction, extending not only to buildings immediately adjoin- ing the railroads, and which are fired directly by 38 FARM LAW. sparks from the locomotives, but also to buildings at a long distance from the road, and which are set on fire by sparks Hying through the air from some build- ing nearer bv, which had first taken fire from the 13 Met. 99. p^o-i.iP 98 Mass. 414. engine. 103 Ma.ss. 586. 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. Different states may have different statutes upon this subject. CHAPTER VIII. AS TO FARM FENCES. It was a fundamental principle of our law (though the contrary 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 neces- sary, 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 primaril}^, therefore, not to keep other people's cattle out, but to keep one's own in ; and so any land- owner, if he kept cattle, was bound to erect the en- tire 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 inoMass. 9-i. 29 Me. 282. Massachusetts, Maine, Vermont, New Hampshire, Ji vt. 268. New York, Maryland, Minnesota, Indiana, Michi-j qq^ 7^/ gan ; while Connecticut, Pennsylvania, Ohio, Iowa,^g^J[^^'^32Q Kansas, West Virginia, California, and some others, i^jp^' ^,^Jo ' ^ ' '3 Mich. 163. adopt the other rule, that the man who cultivates HCoun. 295. his land must keep other people's cattle off. And 3 Ohio St. 179! statutes sometimes so declare. 7 Kaiwas, 592. But two parallel fences would be attended '^itli I'T^aL^oOS.^ useless expense; and, as one and the same fence, „'*'^?\ ,„ „ , '■ / ... . 10Rich.(S.C.) would answer for two adioininsr proprietors, it was 227. 1 -1^1 , , , f • . - 42 Geo. 305. long ago proviaed by statute law, in many states, 22 Tex. 355. that adjoining owners of improved lands should 31 Mrsk 152, maintain partition fences in equal shares ; and, if 40 FARM LAW. 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 pro- Pub.sts.c.36. pj.jgj.Qj. 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 double the expenses of the delinquent owner by a suit at law. It follows, therefore, that if my adjoin- ing 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 injury. But now comes in a very important addition to this rule ; and this is, if my cattle stray beyond the immediately adjoiningland, 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 through 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 half of our divison fence. Whether my neighbor would be liable to refund to me what I had to pay to such distant owner, is not yet settled ; but it is estab- lished that the latter could not himself sue the negligent land-owner, but only the owner of the 11 Gray, 489. Cattle. Nay, so far is this rule carried, that although such third person did not keep up his 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 AS TO FARM FENCES. 41 against A; but if they stray still further, on the land of C also, and there do mischief, 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 there injures man or beast, you are responsible, though you did not know the fence was down. 105 Mass. 7i. 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 j^ johns. 385. altogether gone, you have a remedy 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, fish- ing, 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 youaoN. H. 143. are carefully driving your cattle along the highwa}^^ 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 ii4 Mass_. 466. had a right to drive them along the highway, withsi Penn. St, proper care and attention ; while in the other case 64 fii". 307. they were not lawfully in the highway at all, al- though the owner was not personally at fault. The proper legal height of all division fences in Massachusetts, Maine, and some other states, is four 42 FARM LAW. 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 greed}^ cow pokes her head be- tween the rails, and lops off your neighbor's corn or cabbages, you are as much bound to pay for^theMam- age as if you had driven her clear in and told her to L. R. 10 c. p. eat her fill. Neither think your responsibility is always con- fined to damage done by your cattle. If one's cattle are injured by your negligent fence you may be re- sponsible to the owner. A few years ago two farmers had a wire fence between them, now so 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, feeding in the tall grass, accidently swallowed one of these bits of wire, and a post mor- tem examination soon became necessary. The cor- L. R. 3 c. p oner's inquest decided that the cow must be paid for. Div. 254. jf ^jjat; is good law — and I suppose it is — your wife or maid-servant should be careful 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. This il- lustration owes its origin to that prince of humorous legal writers, Mr. Browne, editor of the Albany Law Journal. 18 Barb. 397. Thcsc division fences may usually be placed one- 48Mo!'380. half on each side of the line, even though ditches be 2 Met. 180. used three feet wide ; and both owners have a com- AS TO FARM FENCES. 43 mon interest in the whole fence ; and they must be kept in good repair throughout the entire year, un- less 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 ^"^" g^*^' ^^' lands are wild, or not improved, and on which he neither has 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 maintain- ing 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 (ex- cept 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 98 Mass. 565. alongside of B's wood-lot, the latter is not bound by statute to help maintain a fence between them ; but if A puts cattle into his pasture, he must keep them there as best he can, either by watching 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 heretofore kept fenced, wishes to lay it common, he can do so by giving six months' notice of his in- tention 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 R- s. Me. ch. safer way always is to give this notice in writing, is) u^^' ' But he must not take away his fence adjoining any 44 FARM LAW. improved land, without first giving the owner or oc- cupant 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 : bj'' our 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 created wholly by statute, and a fence need not be made except 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 60 Barb. 45. land as is necessary to carry out that duty. 28 Aia. 385. What wc havc 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 law of Massachusetts requires the company when requested to maintain a suitable fence along the whole line, through woodland 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 Pu^lts' Mass ^^ ^^^ division fence between land-owners. It must e.ii2,sec. 102. be Suitable merely, — suitable for the place where 106 Mass, 193. ... i , , i i i 119 Mass. 516. 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 pass- L'aii"' ■^i^i ^"^ train, the company is responsible. But here, 35 Me. 422. 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 AS TO FARM FENCES. 45 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 rail- road 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 the cattle 42 vt!^375. were lawfully pasturing on the lauds near the railroad, ^l ^- ^ ^^3 by permission of the land-owner, they would be pro- tected 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 not23Vt. 150. . 21 N. H. 363. bound to pay, unless guilty of actual negligence. 12 c.B.'ieo.' CHAPTER IX. IMPOUNDING CATTLE. Closely connected with the subject of fences is that of impounding 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 them 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 neigh- bor 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 the seventh time out of his garden or cornfield. It N. H. 213, might, perhaps, alleviate his sufferings to know, 32 Peiii). St. that, if they then stray away and are lost, it is not ' his fault, and the owner has no claim on him ; and he 9\^cii''^58 ^^y 6ven mildly hasten their departing steps by the 13 H*" ^"m ^^^ °^ ^ good-sized dog ; and if the said dog, in the 66 111. 309. excitement of the moment, takes a bit out of the nose or ear of the trespassing cattle, its owner is not bound to supply another. In some states, however, you must, apparently, be careful how large and fierce 18 Pick. 227. IMPOUNDING CATTLE. 47 a dosr you "■ set on " to your neighbor's cattle, lest , «. 6 Blackf. 258. you also suner. You may not always with impunity set your dog on your neighbor's cattle wrongfully straying on to your land. And if one of them is killed by the dog, you might be liable unless the jury were satisfied that what you did was merely in the reasonable and necessary defence of your property. I'lU'r^'i^* The second remedy of a suit at law is more peace- ful, but slower, and more likely to benefit the lawyer than the farmer. Impounding is the most summary, and generally the most effective, but it 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 Massachu- setts 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 sufficient food and water ; or he may shut them up in his own yard for a reasonable time before driving to the pound, and in the meantime send a memorandum to the owner of the animals, stating the cause of im- pounding 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 prefers, 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 the pound-keeper, and also a written notice of the fact to the owner of the ani* 48 FARM LAW. mals, within twenty-four hours, containing a descrip- tion 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 suit- X^'tsec! able pounds. ^- A recent law in Massachusetts has added one more very important protection against invading animals, making the owner of any sheep, goats, cattle, horses, swine, or fowls, liable to a fine of ten dollars if he wilfully allows them to enter another's orchard, gar- den, mowing-land, or other improved land, after be- MassPub.sts. ing forbidden in writing, or by notice posted thereon, chap. 203, sec. rpj^jg statute extends to fowls, which the laws in regard to impounding did not. CHAPTER X. farmer'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 by-stander might think you were indulging in forbidden language ! ,. It may not be generally understood that if a man turns his animals loose into 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 4 ^He^ 444^ to let his cattle run loose in the public highway. In fs^enn^^St one instance a farmer's old black sow was wallowing i^s. in the gutter 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 55 Me. 538. let his horse go out to feed in a public place where some very young children were playing, and some of 50 FARM LAW. them began to switch him, whereupon he turned and kicked one of them so that he died, and the owner 10 Cox, 102. ^g^g convicted of manslaughter. Had he known the animal was dangerous, it might have even 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 his horn, and did not keep it in, and it killed a man or woman, not only the ox, but also the Exod. xxi. 29. owner, was put to death. And now as to a farmer's liability for animals on 37 Conn. 404. ■,. . r j 124 Mass. 49. ^is own premises. Ji, very owner ot a dangerous or ^ff4^"^°^^*^' vicious animal known to be such, is liable for all in- ^^^' ^ ^^^' ^^^y ^^ ^^y ^° *° another, even though the latter is o„^^?^' o^- ^t the time trespassincr on the former's premises. If, 38 Wise. 300. , „ t b f 37 Iowa, H13. 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 17 Wend. 497. jq^ ^[^ qq^ gg^ Jjjjjj qq You should haVC pOStcd up the advice of St. Paul, — Beware of Dogs. And in like manner, if a boy, while robbing an orchard, is tossed by a vicious bull 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 re- ceived 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 3 c. & p. 138. 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 farmer's animals. 51 who is lawfully walking through his grounds. Not long since, the proprietors of that beautiful " Con- gress 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 part of the attractions of the place ; and it was thought to be no excuse that the owners had posted up a conspicuous notice, — " Beware op THE Buck." And after a very elaborate argument, the Supreme Court of the United States at Washing- ton refused to disturb the decision. What a dear^QjjQ^Q^ ■creature that buck 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 an-^s^^i ■ & ^ imal had any previous knowledge of the brute's war- j^^^^j^^j^ ^^ like disposition. If so, the mere keeping of such an so. ^j^^^. animal unconfiued is itself, in law, deemed culpable 424. 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 high- way under the care of a keeper. For this reason, if a man's horse runs away in the street, and injures some one, or breaks a carriage, the owner is not lia- 3 Alien, 565. ble, unless he carelessly left him unhitched, or was ^j| ^j ^jj**^- guilty of some other negligence. The not uncom-24 La. Ann. mon 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 necessary; 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 52 FAEM LAW. Mass. Pub. written memorandum of the sale be made ; but the iStS. C. 7o, sec. 5. precise details of this statute cannot 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 59*1^111^ if a thief steals a horse, and sells him to you, and ^2N.H.io8. you pay your money for him, in good faith, the real 9 Allen, 171. owner may come and take him from you, without 8 Cow. 238. . -^ , , , ■, T^ , 5 s. & R. 130. repaying what you have advanced. Ferliaps he ^ * " ' would be bound to pay a fair charge for your keep- ing him in the meantime, but even this is not cer- 106 Mass. 286. tain. Of course a farmer does not lose his right of ownership in his domestic animals, although they have straj'-ed away, and been really given up as lost. 129. 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 neigh- bor's pond, and he shot them, but he was held re- 10 Johns. 102. sponsible 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 bee-hunter, at any rate, has a right to capture and carry them away, 15 Wend. 550. or eveii 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 ownership in the bees, even as to any other bee-hunter, who comes along afterward, and actually captures and carries them away. The lat- 16R. 1. 34. ^gj, could hold them as against the first finder. faemer's animals. 63 though perhaps not when claimed by the owner of the tree. In cases of wild animals, possession is pre- eminently " nine points in the law." ^ Cow^^ks^" The same is true of other wild animals. A hunter ^ Binn. 54G. 2 Dev. 162. does not acquire any legal right or ownership in a wild animal by pursuing 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, in all probability, have escaped, the rule might be different. But wild animals, which loS'ohns! 75?' 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. H nI'c^'sis. A few other points about your animals you might like to know. You haven't a right to keep a large number of swine so near the highway, or so near your neigh- bor's house, that the odors of the piggery are really disagreeable, and a nuisance to the neighboring fami- lies, or to travellers on the highway; and a custom to do so would make no difference. Such things are a nuisance in law. 1^9 Mass. 201. If your horse has the glanders it may be killed by order of the Cattle Commissioners without making you any compensation, but their decision is not con- clusive against you. You may still go to the jur}' in a suit for the value of the horse, and if you prove the horse did not have the glanders, you can recover the value. 152 Mass. 640. If you take other people's cattle to pasture for the season you are not liable for any injury to them, un- less you were guilty of some neglect in taking care of them, which the owner must distinctly prove. ^'^^ ^^^^^- *®^" CHAPTER XI. ABOUT DOGS. The question of liability for, and protection 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 their " Twelve Tables ;" while an early law in Wales provided, that, after a dog had bitten three persons, he should be first tied to his master'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 accus- tomed 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 only so, he must, in both Massachusetts and Maine, pay double damages for the pleasure of keeping such animals ; and, after chap. 102, actual notice of his disposition, the damages maybe sees. 93 and gometimes increased to threefold. And so compre- 3 Allen, 191. ABOUT DOGS. 55 hensive 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 responsible 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. If the injury is caused by a dog's playfulness merely, as by jumping upon a child and throwing him to the ground, and cutting his face on the stones, the re- sult is the same, the owner is equally liable. i48 Mass. 85. Again, if your dog is at large, although he is a i Alien, 191, 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. 4 Alien, 431, In a recent casein Massachusetts, a boy thirteen years old met a large dog weighing about one hun- dred 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 10-^24 Mass 57 stead of thirteen years old, the dog might have come ^s wise. 300. off victorious. ^5 m. 935.: The old notion was that every dog was entitled to one bite 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 (^-^""J" m ^' 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 liabil- 56 FARM LAW. ity for all his dog's mischief, but to provide a fund for the remuneration of the farmer, when the owner was not known, or was not pecuniarily responsible. Accordingly, in Massachusetts, any man whose ani- mals 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 sustained ; or he may '"go for" the owner of the dog, and get double damages, if he can : but he can- 2 Allen, 208. not try both methods. If he is paid his simple dam- age 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 ex- ist 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 52 Me. 178. bcast, he is liable for the damage done just the same. The statute of Massachusetts (Pub. Sts. C. 102, § 93), not only makes the owner of a dog liable for his misdeeds, but the "keeper" also. What consti- tutes one a keeper is ordinarily a question of fact for 3 Allen, 101; the jury under all the circumstances of the case. 5.. . . 368. -g^j. j^gpgiy allowing another to keep a dog on one's premises for his own pleasure or company, does not 128 Mass. 218. j^ q^^^ q^ itself Constitute one a "keeper" of such dog. Therefore a farmer could hardly be held liable for the conduct of a dog which his hired man owned and brought on to his premises, merely because he 153 Mass, 349. did not forbid it, or drive the dog away. Neither is a wife liable as keeper of a dog owned by her hus- band, though kept on premises which she owns, and j52Mass. 7. qh wliicli she Carries on her own separate business. You will observe that the Massachusetts statute says, that the owner or keeper may be liable, etc. It does not mean that both are. You cannot sue both in one suit, one as owner for owning, and one as ABOUT DOGS. 5"^ keeper for keeping. Nay more, if you sue one and get a judgment against him, you cannot afterwards sue the other, even though 3'ou cannot collect the damages of the first one because of his inabilit)'' to ^^* ^*^^' ^^* pay. You must look carefully before you begin. Be sure you're right before you go ahead. If one is injured in his own person, his only remedy for re muneration 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 ex- tended 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 13 Johns. 312. •^ "^ "^ . 21 Wend. 407. while peaceabl}'' walking or riding in the public 2« vt. 638. streets ; and so you may if the dog is found out of the enclosure or care of the owner, wounding, worrying,, or killing any poultry, neat-cattle, sheep or lambs. 9 John. 233. So as to a dog which continually haunts your house, 52 BMb. 15. barking and howling day and night, disturbing the ^*^ ***^^' ^^®" peace and quiet of your family. But you could not 2-' Wend. 334. lawfully kill a neighbor's dog merely because he was peaceably walking over your grounds without leave. If a dog is not licensed, or has no collar on, your right to kill him is much broader. The law of Mas- sachusetts says you may kill him "whenever or i33 Mass. 240. 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 owner's n AUen, 151. premises. "Whenever and wherever found," there- i5^(^ayr6^^* fore, don't mean exactly what it says. Such are the*^?^*^**** guirks of the law. 68 FARM LAW. Again : do not think, that, because you can openly and publicly shoot an unlicensed dog which is hang- ing around your premises annoying your family, you can therefore poison him ; for that kind of physic is not to be thrown even to dogs, and the mere expos- ing 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 in Massachusetts, a free resi- dence in that well-known state institution at Charles- town for Jive i/ears, or if you live in Maine you may be a guest at Thomaston for four years^ — that is, unless you see fit to break out before that time ! Thus much for the law of dogs. And the only crumb of consolation I can offer 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 20 Pick. 477. for those your dog killed, and not the others, if any- 4N. Y. 131. ' body can find out which was which; whereas, if the |vt"g;^^' two owners of the dogs go out together to rob a 9 ind. 72. melon-patch, one is liable for all the melons carried 10 "Wend. 654. away, although the other ate them all ; so that in one 18 Ohio', 1, ' respect the law seems to favor the dogs. On the 399.°^' ^' other hand, as a man is not liable for any sheep, 4Denio. 175. fowls, or other things which his mischievous boys 37 Tex ^406. wantonly kill when coming home from an unsuccess- 24 Mo. 219 fui hunt, drunk or sober, in this respect again the 17 Wise. 230. ' 1 J *. ■_' 13 Kans. 348. 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 ■o „ „ „ o^ American states, that a man could not have any xJell Kj. Kj, 34. •PTi IT 8 s. & R. 671. ownership in a dog, and therefore it 1 should steal 400. ^° ' your dog (instead of one of your chickens), I could not 48 Ala. 161. ^ convicted of larceny for it. But in many states ^ p?rTer,*593. a morc seiisiblc rule exists, either by statute, or other- 1 4 Parker, 386. Wise. CHAPTER XII. LIABILITY FOR HIS MEN. 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 ac- tually employed in his business ; therefore if you send a boy to burn old brush, and the lad leaves his work to look after his partridge-snares or rabbit-boxes in the wood, and the fire runs into the next field, and con- sumes the crops or fence of your neighbor, you must pay the bill, although you told him to watch it care- fully, and never leave it a minute. If you send a loads Gilm, soa of farm produce into town, and the diiver falls into a '^ • • doze and runs into another team, you must pay for the broken spokes. If your man, in going to or from the hayfield, 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, your man accidently cuts over the line, on your neighbor's lot, you are responsible, al- thousfh you told the man where the line was. A short 23 Mich. 298. ^ . ,..,. ,, ,3 Sneed, 20. 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 126 Mass. 24. maliciousness in his act done in the prosecution of your business, and intentionally runs into another team which somewhat obstructs his way while driving your 60 FAEM LAW. load, you may not screen yourself beliiiid his uuneces- 114^^^"' ^^8 ^'^^y ^^^^ wilful violation of your orders. Of course, in i09,Mass. i5i. all tliBse cases, jou could compel the servant to repay you all the expenses he had thus caused you by his misconduct. On the other hand, to make you respon- 43 Conn. 244. sible for his carelessness, lie must have been at the very time on your business. 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 26jPenn. St. merely because it was your horse and wagon ; much less would you be liable if your servant took your 4 Daly, 338. team without your knowledge on pleasure or business oi 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 " Philadelphia 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 next day's dinner. While fulfilling this order, the man also took a little •' fire-water," and soon after ran over an old woman in the public high- way ; but the master was considered not responsible^ ^ 557!^ ^' ^' '^^is ^^^' however, in the courts of the Emerald Isle. One more distinction on this subject it may be well to state ; and that is, that, although an employer is responsible for any careless injury his men ma}" da to third persons, he is not responsible for such an in- jury to other fellow-workmen. If a hired man, therefore, by the very same act of negligence, injures 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 ou himself, what- LIABILITY FOR HIS MEN. 61 ever his rate of wages. But, on the other hand, he ^^2*^*8'- 234. is not presumed to have contemplated any negli- gence on the part of his employer; and therefore he has a remedy against the latter for his own personal • -J- J • £c • ^48 Me. 113. carelessness, or in providing dangerous or insumcient 29 Conn. 548. machinery or apparatus, or even in hiring notoriously 38 Ind. 294. incompetent or habitually careless men. In one in- stance an employer was compelled to pay two hun- dred dollars to his hired man, who fell into a barrel of hot water, set in the ground and carelessly left ^^^ ^*^* ^22* uncovered, but which the man did not know of. And this last rule would probably render the em- ployer liable for any injury to his servants from dan- gerous or vicious animals intrusted to them to take care of ; at least, if the owner knew of their charac-^ Exch. 223. ter, and the man did not. Statutes have been passed recently which change the common law liability of some employers for acts of their men, but it is expressly declared in the Em- ^^.^^ ^^ ^gg^ ployers' Liability Act of Massachusetts that the act ch. 270, sec. T. shall not apply to injuries caused to domestic ser- vants, or farm laborers, by other fellow-employees. 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 arti- cle, nor upon any of those books called " Every Man his own Lawyer," but go and get the best legal coun- sel you can find. CHAPTER Xm. ABOUT FIRES. If a careless hunter fires your woods, and, much to his consternation, the flames spread to your fields, and run along the fences to your barn, he is respon- sible 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 21 Pick. 378. consequenccs directly caused thereby ; and this 2 Harr. 443. would be SO whether the fire ran along the ground continuously, or whether the sparks were blown through the air a considerable distance over interven- 107 Mass. 494. ing land, and then set fii-e to some person'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 res- ponsible, if, by a sudden rise of wind or other cause, without negligence on his part, the fire is accidentally communicated to a neighbor's premises, and causes I J^^^^' ^^"c liini serious injury. The gist of his liability (I be- 323. lieve the lawyers call it) in such cases is some care- 54 Me. 259. Icssness, either in the time of setting the fire, or in 44 B^rb 424 ^^^ manner of doing so, or in watcliing it afterward ; m Me. 32. and the man who suffers is bound to make it clear 11 Met. 460. , , 1 1 T. T 25 N. Y. 544. that the other was to blame. But even your negli- gence Avill not always render you liable for the spread of a fire, unless it was originally kindled by you intentionally. Therefore, if your barn takes fii'e through your carelessness with the lantern, or that of your man with his pipe, and thereby your neighbor's ABOUT FIRES. 68 property is also consumed, you are not bound to pay for it ; the law seems to consider that you have suf- fered enough for your conduct in the loss of your own i bi. Com. property ; although there is some difference of opinion 37 Barb 15 ahmif this 35N. Y.210. aOOUt tms. g2 Peuu. St. Still less would you be responsible if the fire orig-^^^^Y ^^ inated 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 property, it would be hard indeed if you had not only to lose your own, but to pay for his also, n q. b. 347T And I suppose, even if you were careless in not promptly and energetically putting it out when you could have done so, and it spreads beyond your con- trol, 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. 10 Cush. 189. CHAPTER XIV. WATER EIGHTS AND DRAINAGE. Water is flowing and fleeting, and the rights of farmers therein are much of the same kind. If a stream of water flows through a farm, the owner has a right to use any reasonable quantity of it as it flows 25 Conn. 331. along, for watering his stock, irrigating his land, or 4 Ga. 241. supplying his house tor domestic use. But he must not monopolize the v/liole ; his neighbor's cattle 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 use the whole. He may, to some extent, 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, provided he does not thereby flow back on the 10 Mass. 74. land above him. If he does so, he is ordinarily liable 3 Demo, 306. ■ • . 19 N. H. 471. to a suit for trespass, and finrlly, if he continues it, to 12 Cush. 454. . . . ^ ■ ^ .\ ^ X u 3a vt. 426. an mjujiction, except m Barnstable county, wnere a 4 Kansas, 511. ^^^^^^^ Special law allows such ponds upon paying damap-es i o the owner of the land flowed. A farmer 154 J4^£iss 579 ' generally 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 compensation, generally apply only to mill-dams, cranberry-dams, and the like ; and, if your neighbor ^190, seS' 48. below you does so dam up the stream as to flow back WATER EIGHTS AND DRAINAGE. 65 on you, you may enter on his laud, 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, or snow and ice, you have a right to go on to the land and remove the obstruc- tions, so that the water will flow as freely as before ; and the natural deposits you may place on the 5 Met. 429. 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 an- other's lands. But you have not ordinarily such a right, unless you or your predecessors have pur- chased the privilege of him, or have enjoyed it so long and under such circumstances as to have there- by gained a prescriptive right, as it is called, or, lastly, have hadthe ditch opened by commissioners appointed by the court under the public statutes of3Aiien,7. Massachusetts. If your land is overflowed by back "ch. m water from a town sewer which the town has neg- lected to keep free from obstructions, no doubt you can recover the damages from the town. i^i Mass. 174. The rights and liabilities of farmers in surface- water are xerj 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 which oozes out of the ground from springs or marshy places, and which finds its way over the surface, or through 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 66 FAKM LAW. 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 5^R^*943^^" premises below him, whether grass-land or cultiva- 29N.Y. 467. ted field, even though it be a serious in iury to such 76 N. Y. 60. ' 111 . • 1 r. 12 Ohio St. neisfhbor, unless he collects it into a definite artifi- 300. cial channel, and makes it a stream, for then he would be liable. 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 trouble and damage to remove it, but it was decided, after a very elaborate argument, that the upper proprietor 64 ind. 167. had no redress. 100 M 181 ^^ ^ farmer wishes to protect himself from mere 46 Cai. 346. surface water, he must build up some embankment 49 111. 484. 23 Mo. 181. at the edge of his land, and stop the flow, as he has a 74 N. C.767. perfect right to do, although he thereby makes quite ^'m^^^' ^* ^ pond above, and injures the crop there. 153 Mass. 247. jjj j-jjg qI^ gg^y State, no action lies against the owner below you for backing surface water on to you, nor against the owner above for turning it on to you. Damming' is the only remedy. Nor will any action at law or bill in equity lie against a town be- cause by the ordinary flow of surface waters from the streets, with the usual impurities incident there- to, your brook is somewhat polluted and rendered less valuable. If you have any remedy at all, which is very doubtful, it is by petition under 154 Mass. 255. the statute. And it makes no difference whether the surface water from the road overflows your land, or whether WATER RIGHTS AND DRAINAGE. 67 having been collected in catch basins or gutters per- colates thence through the soil into your cellar. !•**' ^^ass. 467. 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 Pub. Sts. c. 62. sec. 15, but you could not bring a suit at law against the surveyor. 153 m^ss. 247. As to under-ground water, the law does not gen- erally recognize any right of ownership therein ; and consequently, it" your neighbor's well is fed by springs or underground 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 diy, he must 62 Me. 175. ' bear it as well as he can. But you must be careful 20 Coiin! 533, in digging not to dig so low as to cause liis land to ^ ''penn^^lt cave into your excavation, or you may be responsible ^^28. therefor. This rifrht to cut off one's well supply n Mass. 220. 122 Mass. 199, seems to be confined to land owners ; for if yoiu- town 27 Gratt. 77. ' in building a common sewer drains your well by cut- ting off the water percolating through the soil, you have a remedy against the town under Pub. Sts. c. 50, even though your well may not be adjoining the tract through which the sewer is laid. 144 Mass. 139 . In connection with water rights may properly be considered the matter of ICE. If the mill owner below you has raised a pond on your land, on which valuable ice may be cut, neither he nor any other ice dealer has a right to maliciously 154 Mass. 414. draw down the pond and so destroy your ice crop, when about ready to harvest. You have the right to cut ice made over land which 108 Mass. I60. belongs to you. But you could not take ice enough 91 1„',]\34. ' 68 FARM LAW. 10 Cusb. 186. to appreciably diminish the head of water, if such a 26'Hun. 246. 82'ind. 568. result is possible. If the pond is a natural pond, en- tirely on your land, your right to the ice is clear, and so is your right to sell it to another who would have ii^Midf 'sis' ^^® ^^^^ right to it. But if the pond is a " great pond," i. e. a pond of more than ten acres in extent, your 108 Mass. 470. rights are not the same. By an early colonial ordi- nance, ownership of the soil under such ponds is re- served to the public. Your ownership stops at low 7 Allen, 158. water mark, consequently, although your farm borders 77 Me. 100. on the pond, your rights in it, or in the ice, are no 131 Mass 222 greater or less than those of any other citizen. You have a right to cut the ice, but it does not be- come your property until you have taken it into your 26 Kans. 682. posscssioii. It is not cnougli to scrape off the snow and put up stakes showing where you intend to cut. 131 Mass. 474. ^^^^ jou cannot recover any damages of a person who M^M^'^iSo'^^"' ^^*^ holes through the ice for the purpose of fishing. If the ice is formed on a river instead of a pond your rights are similar, but not exactly the same. Private ownership of river beds above tide water ex- tends in this state, as in some others, to the thread of the stream. So that you have a right to harvest the 44 Mich 229 ^^® ^^P ^*^ ^^^^^ ■^^^^^' ^^^ such rivcrs are public high- 101 111. 46. ways, and you may be liable to a traveller injured by 18 Me. 433. your acts in cutting the ice. 79 Me. 456, "^ * CHAPTER XV. TRESPASSING 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 person simply crosses your land for twenty years, he thereby always acquires a right to continue the prac- tice ; but this is far from being universally true. The very foundation of acquiring such a right (prescrip- tive 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 permission, express or implied, and under a claim of a legal right so to do, whether the farmer is willing or not. If, there- fore, the person crossing does so with the permission, or by the mere indulgence, of the land-OAvner, and not under any claim of right, it is wholly immaterial how long the custom has continued. Forty years' travel by consent of the owner would not give any right to continue to pass after he had been forbidden to do so ; and, to avoid any misapprehension in such cases, it is wise for the farmer to put up notices for- bidding 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 line of twent}^ dollars for wilfully crossing or entering upon any garden, orchard, mowing-land, or other improved 70 FARM LAW. or enclosed land, between the first day of April and the first day of December. Maine also has a similar ^203 £c ' 99 ' ^^^^' "^^^^^ ^^ ^^^^^ "^^^'^ criminal where the intruder stj y, 0. 410 has fire-arms. If, also, a man's object in coming into your prem- ises is to steal yoiu' 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 unnecessary violence. But you cannot lawfully set spring-guns, man-traps or St. 1890. C.403, otlisr instruments which may do him grievous bodily 37^10 ^' ^613 ^^^^' without giving notice of such hidden dangers. 31 Conn! 479. Perhaps if ample notice was posted up, of the exis- 7 J. J. Marsh. ^ . -, . ^ , . ^' . . 478. tence and location oi such instruments oi injury, a person trespassing misfht have no remedy for his mis- 3 B & Aid J. o o ^/ 304. ' fortune. But even this has been pointedly denied 59 Ala. 1. -j^ ^Yiis country. For it is notliing 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 pic- ture of boys stealing fruit in the boughs of an apple- tree, with a farmer picking up stones, and a maxim, that, if words and grass did not answer, he might throw stones. But, if in so doing you' should happen 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 hens 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 14 Conn. 1. owner to keep them at home, or take the conse- 107 Mass. 406. nnpnpp« 10 S. & R. 394. ^^^^CeS. A farmer in Connecticut, who had been greatly an- noyed by his neighbor's hens scratching up his garden seeds, spread a quantity of Indian meal, mixed with TRESPASSING ON THE FARM. 71 arsenic, on liis oavh laud, which had tlie effect designed ; but lie 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 ^ Johns. 233. after one's chickens, I don't know ; but I mean to try ^^ ^^^^^ j it the first chance I have. Not but what a cat may be in the protection of the law on her owner's own prem- ^'^ ^- ^\**- ^ ^4 Tex. 492. ises, as a man in Canada recently discovered, when he 60 ill. 211. had to pay ten dollars for the fun of shooting one. Law J. 14, ' But when she has a chicken in her mouth, or is just ready to S2)ring 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 out in windi'ows, 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 pur- suit of his own, and there is reasonable ground to ap- prehend 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 confined to the very moment when they are in pursuit, or about to immediately attack the farmer's animals ; but if from their habits or former ^.^.^ j^^^ ^^^ conduct, there is good reason to believe one's own i^^"^- ^^a. property is in danger, a man need not wait until the 9 Johus. 233. dog has the lamb by the throat, or the cat has the 318. chicken in its mouth, before he can fu:e. xiJ" An interesting illustration of this right to kill other people's animals recently occurred in the northern 72 FARM LAW. part of New Hampshire. 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 be- tween May and October under a penalty of ten dol- lars for every animal so killed. And the farmer being prosecuted for this penalty, it was decided after a very elaborate examination, that he had a right to kill them, notwithstanding the law, if necessary to protect his own animals from destruction, and that it was not necessary he should first try to drive his own animals ■ ■ ■ ■ out of harm's way before killing then- assailants. The opinion in this case is very elaborate and very interesting. One of the most annoying forms of trespass to the farmer is that of hunting and fishing. Many persons seem to suppose, that by force of some general cus- tom, or otherwise, they have a right to hunt or fish 4 Pick. 145. over another's ground as they please ; but this is quite 13 c. B. (N. , 1 . • .• • s.)844. erroneous, though m some states a previous notice is 5 H. & j!Y!)5! thought to be necessary, to enable the farmer to pros- 29 Mich. 62(i. QQ■^J^^Q a hunter or fisher so engaged. In all ordinary streams and ponds the right to fish belongs solely to- 2Couu. 481. the person owning the adjoining land. If the stream is navigable, — that is, if the tide ebbs and flows, — 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. But in a stream where there is no ebb and flow of the tide, but which is navigable in part, although the pub- lic have the same right to boat up and down as before TRESPASSING ON THE FARM. 73 stated, probably they have not to fish from boats, ex- cept by permission of the riparian owner, express or implied. 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 any man's ' propriety ' for that end, so they trespass not on any man's corn or meadow." But a recent statute has restricted the right of the public to fish in great ponds unless they exceed twenty acres, and consequently the riparian proprietor of any such pond now has the exclusive con- trol of the fisheries therein existing. Pub. Sts. c. 9i, The recent laws authorizing fish commissioners to lease large ponds to private parties may, of course, ^ec. 12.^ modify the former rights of the public therein. J^^ ^^^- *^- As to salt-water fishing, the law is somewhat pecul- ^^^ Mass. 300. iar ; for although the owner of the upland ordinarily owns the land down to low-water mark, as before ^^^ Mass. 216. stated, yet any other person may go there, and dig clams or other shell-fish, if he can do so by water, andscush. 347. .7 Gray 440. without crossing the upland in going or returning. 37 Me. 472. " The Legislature may sometimes abridge or modify this 144 u&es. 440. right, and vest it exclusively in some person or per- sons, but the ordinary rule is as above stated. 3!^ ^" J* ^^V Statutes have recently been passed as to clams and 1^6. scallops, which to a certain extent regulate the fishing for the same. Another still more common and annoying species of farm trespassing, is that of berr3'--picking ; but this practice, although so customary, is clearly contrary to law. And not only is the trespasser liimself liable to the land-owner, but all who buy and consume the ber- ries so picked, are in danger. The blueberry-canning establishments of Jonesport, Maine, were recently 74 FARM LAW. compelled to pay more than one thousand dollars to the owners of wild land, over which the berry-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 6 M 3. 223. ^j^yg^g^ CHAPTER XVI. OVEEHANGING 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 limbs 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 ii Conn. 177. the fruit which hangs over the line ; and, if he at- 25 n. y. 126. tempts by force to prevent you from picking it, he is liable for an assault and battery. 48 N. Y. 201. In one instance a lady, while standing on the fence picking cherries which hung over the line, was forbid- den 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 which he had the pleasure of paying the neat little sum of a thou- ^ b 339 sand dollars. If your fruit falls into your neighbor's lot, you have, I think, an implied license in law to go and pick it up, * doing him no unavoidable damage ; ^^^ ^^^ ^^ but this may not be positively settled as yet. 12 vt. 273. If, however, a fruit-tree stands directly in the di- vision 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 12 n. h. 454. being responsible to the other. 25 x^ y." 123! Sometimes pereons 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 76 ^ FAKM LAW. doing so, in Massachusetts or Maine, may possibly find himself inside the county jail for a twelvemontli, where the i-ooms 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 same, but must bear the conse- 99 Mass. 598. quences as well as he can. One more caution I must give you in regard to overhanging trees ; and that is, if you have a tree near your line, which is poisonous to animals, as the yew tree, for instance, and you let the 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 4 Ex. i>It. 5. 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 sti-ayed into a neighbor's sugar orchard, and there drank a bucket full of maple syrup, which caused her 1 Cow. 78. death. Her owner had no redress. I suppose it might be the same if cows break into your potato field, and kill themselves eating potato tops, on which you have used "Paris green." CHAPTER XVII. PKOPEKTY EXEMPT FOU DEBT. As a general rule no cla,ss of people pay their debts better than the Massachusetts farmer ; but niis- fortuiie may overtake him, as well as others, and he may sometimes wish to know what property he owns which cannot be taken by law to pay his debts. Therefore a few words on that subject may not be amiss. 1. He can, if a householder, liaving a family^ re- tain a homestead for a residence, of the value of $800. But a bachelor, (having no right to have a famil}-,) couldn't very well claim a homestead. lO Alien, 425. On the other hand a married man who had once ac- quired a homestead would not lose it on the death of 12 Allen, 34. his wife and all , his childi-en. But if two farmers own a farm jointly, neither has any homestead in it. Allen, 427. In order for any one to acquire a homestead, the deed to him should set forth that the estate was to be held as a homestead or he should have filed a written declaration to that effect in the Registry of Deeds. Of personal property a sheriff cannot seize 1. The necessary wearing apparel of a debtor, or of his wife and chikh-en. This would also include the materials for such aj^parel in the process of man- ufacture. 10 i^iet. 506. 2. One bed, bedstead, and the necessary bedding, for every two persons of his family ; one 'won stove used to warm his house and fuel for it, to the value of 78 FARM LAW. 3. Other Louseliold furniture, necessary for a farm- er and his family to the amount of $300 ; and the word "necessary" is generally construed quite liber- 4Cush.350. 11 11 Allen, 582. ^^^J- 4. Bibles, school-books and library to the value of 150. 5. One cow, six sheep, one swine, and two tons of hay. The word " cow " applies also to a young heifer which has never given milk. If you have two 8 Aiiln,'583.* COWS you may select which you will keep. And one 2^Anen^n9 ^wine is exempt, though it has been killed and i34Massr40i.cbessed. 15 Mass. ::05. 6. Tools, implements, and fixtures necessary for carrying on your trade or business, not over $100 in value. The words " tools and implements " mean small articles of simple construction and moderate cost, which are ordinarily used by hand, such as shovels, pick axes, hoes, dung forks, etc., not only for 7 Gray, 67. oiie's self, but for all one's men. Such articles as a farm cart, tip cart, cart harness, whip, farm pung, and a buffalo robe, have been declared to be not 134 Mass. 401. exempt from attachment. Much less would horses or oxen come witliin this clause. 7. Family provisions to the amount of $50. This language includes family vegetables still growing in the ground, as well as after they have been harvested and stored in the cellar. But as it does not exempt vegetables, etc., raised for sale, if so be you have a larger quanity on hand than the exemption covers when the officer comes with his execution, you should select $50 worth, and let the 5 Allen, 158. officer take the rest. 8. A family pew in church. 9. The boat, fishing tackle and nets of a fisher- man, to the value of $100 and as a farmer may also PROPERTY EXEMPT F0R|!]DEBT. 79 be a fisherman, he could undoubtedly claim these ar- ticles as if he were only a fisherman. 10. Rights of burial and tombs in a cemetery. 11. A family sewing machine, if not worth over flOO. Thus it will be seen property of over $2000 value in the aggregate, is exempt from execution or debt ; but the better way is for the farmer not to get into debt, and then he won't care to know whether much or little is beyond the officer's power to touch. 18 Q B. 560 CHAPTER XVIIL 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, tills amounts to an absolute warranty or guar- anty 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. And it is now generally understood, that when he either expressly warrants the seed to be of a particular kind or variety, or when he so sells it without any reservation or limi- tation, and thus creates an implied warranty, he is BEWARE OF TEAPS. . 81 liable for all the damages directly flowing from the farmer's use of such seed. In one instance a market-gardener bought of a seeds- man "early strap-leafed, red-top turnip-seed," but which proved to be "Russia late," not salable in mar- ket, and only lit for cattle ; and he was allowed to re- cover 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 honestly thought the seed was as represented. And in case 7 Vroom, 262. the farmer is so imposed upon, and the seed proves 34 n. y. 634. entirely worthless, 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 was represented to be. In one case the 69 N. Y. 62. 9 Hun 556. Shaker Society at Watervliet, N. Y., had to pay heavy 78 N. y. 393. damages, because a lot of seed which they sold as "Bristol cabbage seed," came up a wild cabbage run- ning all to stalks and leaves, caused by the fact that they set their Bristol seed cabbages in the spring, near several rows of "Red Dutch," and the two varieties intermixed, producing a worthless cross. To avoid ^ ^™' *^^- this serious liability, seedsmen at the present day very often print upon their seed-packages that they do not warrant any seed they sell, which may perhaps re- lieve them from their responsibility, unless they knew the seed was not true to name. The other subject to which I alluded is the "light- ning-rod nusiance," so called. For several years past the agricultural community has been overrun by swarms of unprincipled men offering for sale "im- proved lightning-rods," "patent pitch-forks," "white- wire clothes-lines," "force pump washers," etc. With persuasive cunning they prevail upon the farmer to accept the agency for the sale of the article in his 82 FAKM LAW. town or county, with reckless assurance of the profits to be realized therefrom. They ask him to sign a printed contract for that purpose, which he unsus- pectingly does. The articles either never come to hand, or, if so, the}' are worse than useless ; and the agent thinks that is the end of the transaction, and writes to have the rulAish taken away. A few months afterward another man comes round, — a con- federate rascal Avith the former, — and presents the farmer with his printed promissory note for a hundred dollars or more, and pretends he bought the same in good faith, and demands payment. The signature to the paper is genuine, and the farmer is amazed to know how it came there. Nothing 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 con- tract, 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 ; having ■55 ind. 140. taken legal advice, that, if so, he can probably recover 64 ind." 120.' the amount of the note, notwithstanding the outra- 66 N ^' illf geous fraud, as has been frequently decided. While in many states, so anxious is the law to protect the hon- ^j^ns?kiT^' est farmer from the schemes of such an unjjrincipled ^TM^ * ^" ■^' gang of swindlers, that it has decided, that if the 54 111. 196. sisrner was not really guilty of negligence, in the eye 22 Mich. 479. * J o J o o ^ J 51 Mo. 245. of the jury, in being misled by such a rogue, he is not 370. bound to pay the note to anybody, indorsee or not. The honest farmer is in the hands of a set of accom- plished 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 mis- creants ; shun them as you would a rattlesnake. If there is one place hotter than another in the world to BEWARE OF TRAPS. 83 come, they deserve that corner, hving as they do upon premeditated, cold-blooded 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 valu- able information, or save you from the many entangle- ments of the law, or even to interest you but for the passing hour, my purpose has been accomplished. INDEX. THE FIGUBKS AT END OF EACH LINE DENOTE THE PAGE. ACCEPTANCE, Should be of the exact terms of the offer, 10. Should be strictly vrithin time allowed by offer, 10. By letter, 11. ACRES, Deficiency in number of, 14. Quantity mentioned in deed, 13. Intentional overstatement of quantity, 14. AGREEMENT, As to crops, if oral would not be valid, 19. Consequences to laborer if he breaks it, 24, ANIMALS, If known to be vicious, owner liable for damage done by, 50. Must not run loose in highway, 49. If vicious and kept unconfined, owner is guilty of negligence, 51. May be bought and sold by oral bargain, 51. In buying be sure seller is owner, 52. Of over fifty dollars' value must be bought or sold how, 51. Though astray, ownership is not lost, 52. Wild, when tamed, are private property, 52. Cannot be killed for merely trespassing, 71. Has a right to kill if in pursuit of his own, 71. APPLES, In the road belong to whom, 28. ARREST, Of laborer excuses from farm work, 25. BARGAIN, Closed by deposit of letter of acceptance, 11. Oral, for farm with part payment, 10. Oral, gives no permanent right of way, 31. Oral, good for animals, 51. BARN, Rights as to moving on highway, 29. BEES, "Wild, belong to land-owner, 52. If a swjtrm leaves to whom they belong, 52. 86 INDEX. BELL, Attached to building passes with it, 21. BERRIES, Persons picking them may be trespassers, 73. BLINDS, If old, go with house ; if new, contra, 20. BOARDS, "When loose in the building do not pass, 18.. BOND, For a deed should be taken, 10. BONFIRE, Farmer may build on his own land, 62. Must be carefully watched, 62. BOUNDARIES, Three circumstances determine them, 13, Lines determined by monuments, 13. More important than number of acres, 14. Fraudulent statement of, 14. If to a tree or rock run to center of it, 15. BROOK, Boundary line is in middle of current, 15. BUILDINGS, Need not be mentioned in deed, 20. Include old window blinds, not new ones, 20. Include lightning rods, 21. When personal property, if ever, 20. What part of inside furnishing passes with it, 21. BULL, Owner responsible for damage caused by, 50. CAT, May be shot for killing chickens, 71. CATTLE, Laborer must feed on Sunday, 25. May be fed in the road by whom, 28, 29. Who is responsible for letting them out, 41. Injured on railroad track who is responsible for, 36. responsibility depends on circumstances, 36. Liability for stray, 40 . Owner not liable for damage done by them when, 40. and when liable, 40. Straying in highway owner responsible for when, 41. INDEX. 87 CATTLE, When lawfully in the highway, 41. when not, 41. If injured by poor fence, result, 42. If trespassing, may be put in pound, 46. may be turned into highway, 46. owner may be sued, 47. CATTLE-BAEN, What it includes, 21. CHILDREN, Cannot pick up apples in the road, 2S. CISTERN, Passes with house ,'21. CLAMS, May be dug by the|public, 73. COMPOST, Usually passes with the farm, {19. CONSENT, Mere consent never gives right of way, 32. CONTRACT, By letter, 11, 12. Result if laborer breaks it, 23. To work for more than a year must be in writing, 2G. When not valid, result, 26. CONVEYANCE, When a court of equity will compel one, 10. CROPS, Growing, pass with farm when, 19. CUSTOM, Validity in law, 16. DAMAGES, May be recovered of laborer when, '•?4. Caused by leaving gate open who is respousiblelfor, 33. May be recovered by Jthird person frcm owner of cattle, when, 40. May be recoveredjof owner of trespassing cattle, 40. Must be paid on impounded animals, 48. May be recovered [ of owner of yicious animal known to be such, 49. Double, sometimes for bitejof dog, 54. May be recovered of trespasser, 68. May be recovered of purchaser of berries'picked by trespassers, 73. " DEALER'S TALK," Its value in eye of the law, 15. 88 INDEX. DECEPTION', No legal consequences attach when, 14. When seller is liable for, 15. DEED. Should always be recorded, 12. Must have seal of grantor attached, 12. Scroll instead of seal good in some states, 12 Though neither witnessed, nor recorded, is good between parties, 12. What land it includes, 13. When it extends to low-water mark, 17. When it gives the exchisive right to seaweed, 16. When it includes to high-water mark only, 17. Includes growing crop when, 19. Need not mention buildings, 20. Same riiles as to, apply to mortgages, 22. Usually includes to middle of road, 28. Need not mention right of way to a back lot to include it, 32. If given to railroad company, conveys the land in fee, 34, Bounded by railroad conveys to center of road-bed, 36. DITCH, Rules and rights as to, 65. DOG, May be used to drive out trespassing cattle, 46. Double damages given sometimes, if he bites, 54. Though usually peaceable, owner is responsible for his acts, 55. even if dog be licensed, 55. May be killed when, 57. Safe on his owner's premises, 57. Must not be poisoned, 58. No one has ownership in, in some states, 58. EASEMENT, Acquired by railroads in their road-bed, 34. EMPLOYER, No set off against him when, 24. Improper treatment by an excuse for leaving, 25. If laborer leaves for good caiise, must pay, 24. Cannot require unnecessary work on Sunday, 25. When he must pay for work done, 25. Use of harsh language by him, 25. May require of hired man, damages the latter has caused, (iO. Not liable for injuries by his man to fellow-workmen, GO. Liable to his workmen for his own negligence, 61. ENTICEMENT, Person enticing liable therefor, 27. EPIDEMIC, In vicinity, good excuse for leaving, 25, INDEX. EXCUSES, What are sufficient for leaving, 25. FAMILY, If disturbed by a dog, he may be killed, 57. FARM, How to buy, 9. Oral bargain for not binding, 9. How far it extends, 13. "What a deed of includes, 18. No right for stranger to wander over it, 32. Railroads through , 34. F.'iRMER, Owns half the road, 28. Cannot interfere with public travel in the road. 29. Liability for leaving things in the road, 30. Does not lose his title to his stray beasts, 52. May take damages by dogs from dog tax, 56. or may sue owner for double damages, 54. Liable for the injuries his men do, 59. Cannot use all the water of a stream, G4. Cannot flow land above his own, fi4. May keep surface water on his own land, 65. or may turn it on to his neighbor's, 66. Should put up notice to trespassers, 69. Must not set spring-guns for trespassers, 70. Liable for damages to trespassers when, 70. May recover for poor seed, 80. and sometimes damages beside, 81. His liability on a note obtained by fraud, 82. FENCES, One seven feet wide is lawfvil, 15. Conveyed with the farm, 18. No one has a right to deface it, 29. On highway must be placed where, 30. Between neighbors where, 30. In front, must end where, 30. Along railroad must be maintained by the comjjany wlien. 3l). and when not, 36. Adjoining owners musi maintain in equal shares, 39. Proper legal height, 41. Proper materials, 42. What will answer for a, 42. Wire, responsibility for accident therefrom, 42. Division, may be placed one half each side of line 42. Must be kept in repair throughout the year, 43. Difference as to, between railroads and individuals, 44. Duty of building one a statute duty, 44. 89 90 INDEX. FENCES, Railroad, must be " suitable " merely. 44. If destroyed by hired man, his employer must pay damages, 59. FENCING MATERIAL, If never had been attached to soil does not pass, 18. If had been once used, passes with farm, 18. FINE, May be imposed on owner of straying animals, 48. FIRE, Caused by locomotive sparks, liability for formerly, 37. liability for now, 37. One who makes it is responsible therefor, 62. FISH, In ponds belong to adjoining owner, 72. In navigable stream to public, 72. FORFEIT, When laborer forfeits wages, 23. None of wages, when, 24. FRAUD, Actionable, and the contrary, 15. FRUIT, Stealing of, a crime, 70. "What may be done to thief, 70. Belongs to the tree on which it hangs, 75. If it falls into neighbor's lot one may enter and pick it up, 75- On line tree belongs to both adjoining owners, 75. FURNACE, If brick, goes with house, 21. If portable, some doubt, 21. GAS-FIXTURES, Do not pass with house, 21. GATES, May be erected between highway and right of way, 33. GRASS, In the road who 'may cut, 28. HELP, Hiring of, 23. HENS, Neighbor's must not be killed, 'though in one's garden, 70. HIGHWATER] MARK, Private ownership extends to, 16. INDEX. 91 HIGH-WAY, Trespassing cattle may be turned into. 46. Wash from, may be turned on to farmer's land, 66. HIGHWAY SURVEYOR, Rights in the road, 28. HOP-POLES, If once used, pass with land, 18. HORSE, Cannot be hitched to your trees in the road, 29. Owner may be liable for damage by, 49. Run away, owner liable when, 51. Result if one buys a stolen, 52. Owner not liable for injury caused by when, 60. HUNTER, Ha.s no legal right in the wild animal hunted, 53. Owns what is caught in his traps, 53. Responsible for fires he may build, 62. Has no right to wander over farmer's land, 72. IMPROVEMENTS, If made after mortgage, belong to the land, 22. INSURAIsCE, May be obtained by railroad on property along its route, 38. ISLANDS, In a river belong to whom, 15. JURY, Decide as to cause for leaving, 26. KEEPER, Of a dog liable for damage, 56. KETTLES, Set in brick work pass with farm, 21. LABOR, What rate of wages due for, 23. Consequence of engagingto "for a year," 23. Entitles to paypient when, 24. LABORER, Result of his leaving wrongfully, 25. If discharged by his own fault, 24. Excused by his arrest, 25. Result of his leaving with good cause, 25. Harsh language to him no excuse for leaving, 25. Quarrel with another no excuse for leaving, 25. 92 INDEX. LABORER, When his contract to work is not binding, 26. If under twenty-one not bound, 26. Effect of his false statement of his age, 26. Under one form of contract may leave when he pleases, 26. Liable for a "strike," 27. Responsible to his employer for damages he has caused, 60. Cannot recover from master for injury caused by fellow-workman, 60. May recover of employer for latter's negligence, 61. LAKE, Public have rights in a, 16. Boundary line at low- water mark, 16. LAND, Includes standing trees, 18. If wild, duty of fencing, 43. Manner and result of making it common, 43. Adjoining, may be used for building fence, 44. No right of way acquired in by twenty years use simply, 67. LAND-OWNER, May re-occupy abandoned road-bed, 36. Must keep his cattle off railroad track when, 36. Was bound to keep in his own cattle, 39. Must bear half expense of fencing, 39. Have common interest in division fence, 42. Of wild land, not obliged to fence, 43. Remedy for surface water turned on to his land, Q6. If he permits crossing his laud no right of way acquired, 67. Does not own the shell-fish on the shore, 73. LESSEE, Cannot take away mamire, 19. May remove his gas-iixtures, 21 LETTER, Offer to buy or sell by, 11. LIABILITY, Of an owner to two different purchasers, 11. LICENSE, To move building, does not relieve from liability, 29. LIGHTNING, Fire caused by no one responsible for, 63. LIGHTNING RODS, Go with buildings, 21. LUMBER, Of an old building goes with land, 20. INDEX. MANTEL PIECES, Pass witli house when, 21. MANURE, Passes with the farm ordinarily, 19. MILL, Cider, goes with the orchard, 21. MILL-POND, Boundary line is in middle of, 16. MONUMENTS, Control the length of boundary lines, 13. More important than number of acres, 14. MORTGAGEE, What he may take under foreclosure. 22. MORTGAGES, Same rules apply as to deeds, 22. NECESSITY, Gives right of way, 31. NEGLIGENCE, As to vicious animals, what is, 51. In regard to lire renders liable when, 62. If none on part of signer of note he need not pay it, 82. NEIGHBOR, Cannot use one's well without permission, 29. Cannot pick fruit from one's overhanging tree, 75. NOTE, To laborer, must be paid when, 23. OFFER, Not binding until accepted, 9. even though time is given, 9. ORGAN-GRINDER. Liable for trespass when. 29. OWNER, Of trespassing cattle has no claim on one who drives them out of his field, 46. Liable for damage done by his stray cattle on highway, 49. Liable for damages done by vicious animal, 50, if done to one lawfully on his land, 50. Of vicious animal must keep him confined, 51. Of dog liable for double amount of damage caused by him, 54. Of hens can recover if they are killed by a neighbor, 70. PAYMENT, Result of pajring by the month, 23. Result when nothing has been paid to laborer, 23. Must be made by railroad company when, 35. For stolen beast does not pass title, 52, 9a -94 INDEX. PERSONAL PROPERTY, "Wood cut and corded up is, 18. PIGS, If root up the road, owner is responsible, 28. PIG-PEN, Cannot be put in tlie road, 30. POISON, Must not be given to dogs, 58. or other animals, 58. Must not be given neighbor's hens, 70. Must not be applied to neighbor's tree, 75. POND, Artificial, boundary line in middle of, 16. Natural, boundary line at low-water mark, 16. Of over ten acres public have rights in, 68. POST OFFICE, Deposit of letter of acceptance in, 11. POUND, Trespassing cattle may be put in, 46. Proper method of putting animals in, 47, 48. Towns liable for not keeping in repair, 48. PRESCRIPTION, Gives right of way when, 31. and how, 32. PRICE, Consequences if part be paid, 10. PUBLIC, Have superior rights in the road, 28. PUMPS, Part of the building, 21. PURCHASE, Of a farm must be in writing, 9. Representations that will not excuse from, 14. PURCHASER, Released from bargain when, 14. PURCHASE MONEY, "When paid at rate of so much per acre, 14. RAILROADS, Acquire only an easement in their road-bed, 34. May cut trees which are in the way, 35. Can take only necessary land, 35. If abandoned land reverts, 36. Mixst maintain fences along it, 36. INDEX. 95 RAILROADS, Liable for damage to adjoining owner's cattle when, 36. and when not liable, 36. Not responsible for defective fence, except to adjoining owners, unless neg- ligent, 37. Liable for fires caused by locomotives, 37. May insure the property along its route, 38. Duties as to fences different from private persons, 44. Not liable for cattle killed, if unlawfully straying, 44. RANGE, Passes with house, 21. REDRESS, None for certain misrepresentations. 14. "REFUSAL," Dangerous to rely on, 10. REMEDY, Often worthless against laborer, 26. Against one who entices laborer away, 27. REMOVAL, Crops or manure may be removed when, 19. REPRESENTATIONS, Of seller that will not make the sale invalid, 14, RETRACTION, Owner may retract offer at any time before acceptance and he is notified thereof, 9. RIVER, Unnavigable, island in, 15. Boundary line is in middle of current, 15. Consequences when course changes, 15. ROAD, Middle of, the dividing line, 28. Rights in, 28. How public must use it, 28. ":L~;~. If discontinued, what becomes of the land, 30. SCROLL, Used instead of seal in some states, 12. SEAL, Necessary on a deed, 12. SEASHORE, " The flats," to whom they belong, 17. Whenjthe grantee owns to low-wator mark, 13. 96 INDEX. SEA-WEED, When it belongs exclusively to owner of shore, IG. Any one may take possession of it, 16. SEEDS, Are warranted to be what they arc bought and sold for, 80. If not warranted, liability may not attach to seller, 81. SELLER, Can take away loose boards, 18. SET-OFF, When laborer has no right to, 24. SEVERANCE, The collecting of manure into a heap may be a, 19. SHEEP, If worried by dog, he may be killed, 57. Killed by dogs, owner of one Idog liable only for those killed by his dog, 58. SICKNESS, A good excuse for leaving work, 25. SINKS, Part of the building, 21. SNOW, May give right to traveler to turn out upon one's land, 29. SPECIFIC THING, Result of breaking engagement to do, 24. STATUES, Pass with farm when, 21. STOVE, Does not pass with house, 21. STREAM, Rights of proprietors on, 15. May be a sufficient legal fence, 42. Through farm, farmer may use, 64. Course on one's own land may be changed, 64. If obstructed, remedy of owner's above, 64. If navigable, public may fish in, 73. STRIKE, Legal liability of parties involved, 27. SUNDAY, Unnecessary work need not be done on, 25. Necessary work must be done on, 25 . INDEX. 97 TEAM, If driven by hired maii, liis employer is responsible when, 59. If borrowed by servant, he is responsible therefor, 60. TIDE, Things washed vip by, 10. TIMBER, Of an old building passes with land, 20. TIME, Offer to stand open for certain, 10. Result of not working out, 23. Important in fixing liability of employer, 60. TREES, If cut down and left where they fell, pass, 18. If standing, pass with land, 18. If in the road, fruit belongs to whom, 28. In the road, cannot be cut by private person, 28. On railroad's land, belong to farmer, 34. On which bees light, who owns the bees, 52. Limbs overhanging division line may be cut off, 76. If on the division line both parties own it, 75. May be set out on one's own land, 76. TRESPASS, On land, what may be, 29. None, to turn out upon adjoining land, if highway is impassable, ?9. May be a crime, 69. WAGES, Right to current rate, 23. Not forfeited when, 24. WAGONS, Cannot be left in the road, 28. WALL, When boundary line passes along middle, 15. On highway must be placed where, 30. Between neighbors where, 30. WATER, Rights as to, 64. Surface, rights as to different from running water, 65. Underground, no ownership in, 67. WATER PIPES, Pass with house, 21. WAY, Right of, how gained by purchase, 31. by prescription, 31. by necessity, 32. 98 INDEX. WAY, Eight of, gained for particular purpose only, 32. Right of, to a back lot, 32. Right of, by necessity continues how long, 32. Right of, may have gates placed across it, 33. When right of is given, who must keep in repair, 33. Must be located in a reasonable manner, 33. Only the right of belongs to railroads usually, 34. Right of must be acquired by adverse use, (39. WELL, If partly in the road, private property, 29. If dried up no remedy when, 67. WOOD, If cut and corded up for sale does not pass, 18. Cannot be left in the road, 30. If fired by locomotive spark, who is responsible, 37. who is now, 37. If cut by hired man, his employer is responsible, 59. WOOD-LOTS, Need not have a partition fence between them, 43. WORK, Sometimes need not be paid for, 24. On Sunday is not extra work, 25.