Harrison v. Brown

By the Court, Cole, J.

We are of the opinion that section 21, of chap. 88, R. S., authorized the commencement of this suit by warrant. The statute does not appear to make any distinction between the case of a voluntary and involuntary trespass. The affidavit for the warrant made before the justice sets forth fully the facts and circumstances upon which the application was based, and which constituted the action or wrong complained of, and was entirely sufficient to authorize the justice in issuing the same; we see no objection whatever to the affidavit ; neither do we consider that there was any valid objection to the-transcript made out by Justice Oatman, when the cause was removed from before him. It appears to be full and sufficiently explicit in designating the nature of the process issued in the first instance, and all the steps taken in the suit before him, and was also accompanied by the affidavit, warrant, declaration and other papers in the cause. Moreover, had the transcript been less full in this, or any other respect, it would not have deprived the justice of jurisdiction who tried the cause. There can be no doubt but the cause was properly before him for trial.

The plaintiff in his declaration before the justice, described the close in which the trespass was committed with considerable particularity, more, perhaps, than was necessary. In the amended declaration, it was described as being bounded on the east by land owned by Harrison, Hamlin and Taylor; while High, a witness, in describing the premises, said they were bounded on the east by land owned by Harrison and Hamlin. The proof was most clear and conclusive, that the close in which the damage was done, belonged to the plaintiff, and we think was substantially proven as laid in the declaration. Under the circumstances, and considering the evidence in the cause, upon both sides, we think the variance was not very material, and that the defendant was not, and could not have been at all misled by it.

Having thus disposed of the preliminary objections, we come *30 to the real question in tbe case, to wit: is Brown' entitled to recover for damages done by Harrison’s bogs, wbicb entered bis close through a defective fence along, the highway ? It is admitted that the town of Bloomfield, in which the premises were situated, had made no statute regulations determining the time and manner in which swine should be permitted to run at large on 'the highways in the town. It is further conceded, that the alleged trespass was committed by the hogs escaping through the fence while running at large and depasturing in the highway, and not in consequence of breaking into the close, while being driven along the same in transitu. And the proposition contended for by the counsel for the plaintiff in error, is that in the absence of all statute and town regulations, as provided for in section 3, chapter 10, R. S., restraining hogs from running at large on the highway, they are free commoners, and have a right to depasture in the highways; that if they escape into the adjoining close through a defective fence, while thus depasturing, it is an injury for which the law gives no remedy; that a man is as much bound to keep up a legal fence along the highway, to secure his closé against such damage, as he is to keep up a legal fence against the adjoining and neighboring close. We do not think that such- is the law in this state, and consequently consider the proposition unsound. We are not aware of any statute in force here -modifying or changing the common law upon this subject. We have b.een referred to a provision in the statutes of the territory of Wisconsin (p. 117), as changing the common law, and as being in force at the time of the adoption of the constitution, and therefore still changing it. Whether by a correct interpretation of that statute hogs were permitted to run at large in the highways or not, it is not necessary to inquire, for the statute has long since been abrogated. We suppose the common law still prevails, and that it completely and entirely disposes of the whole controversy. For it has been time and time again determined, after the most careful and critical examination of the cases, when the question has arisen for'adjudication, that by the principles of the common law'an action could, be maintained for trespass committed by cattle, *31 bogs, &c., escaping from tbe bigbway upon tbe adjoining land, altbougb tbe land be defectively inclosed by fence, provided tbe cattle be not in tbe use of tbe road for tbe.'purpose of passage merely. “ Every man is bound, upon peril of being accounted a trespasser, to keep sucb animals as are tbe .subject, of absolute property upon bis own soil,” is said to be tbe maxim of common law. Bush vs. Brainard, 1 Cow. R. 78, note a; also 3 Black. 210 , Rust vs. Low, 6 Mass. 94 . Tbe public have simply an easement, a right of passage along tbe bigbway, but not tbe right to make a pasture of tbe road. 3 Kent, 432 ; Stackpoole vs. Healy, 16 Mass. 33 ; Wells vs. Howell, 19 J. R. 385 ; Holloday vs. Marsh, 3 Wend. 142 . And as a general rule in this state, tbe fee of tbe highway belongs to tbe owner of tbe adjoining ground, subject to this easement or right of passage in tbe public. Whether it is competent for tbe legislature to confer upon the electors of tbe towns tbe right and power to permit cattle and bogs to depas-ture in public highways, is not before us for determination. As already stated, no regulation of tbe town is relied upon, permitting bogs to run at large in Bloomfield. But it is contended that in tbe absence of sucb a regulation, hogs are free commoners, and that tbe same rule applies to them while in tbe roads de-pasturing there, as when confined in tbe close of their owner. We see no good reason why we should depart from well established principles and sanction sucb a doctrine.

We therefore think that the judgment of tbe Circuit Court should be affirmed, with costs.