Noyes v. Colby

Woods, C. J.

“Aman is answerable for not only his ■ own trespass, but that of his cattle also; for if by his negligent keeping, they stray upon the land of another, (and *153 much more if he permits or drives them on,) and they there tread down his neighbor’s herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages.” 3 Black. Com. 211. Such is the law as stated in the words of the author of the commentaries, which are themselves very high authority on such subjects, and such has been the uniform practice and understanding of the law in all times, so far as the books show, and it is therefore too late to inquire whether the remedy by an action of trespass is founded upon the strictest logical propriety, where the cause of the damage is the negligence, and not the wilful act of the owner of the mischievous beasts.

It is hardly necessary to remark, but for the course of the defendant’s argument, that the proposition quoted from Blaekstone, relates to the case in which the beasts “ stray upon the land of another,” and not to the case in which they are driven upon it by a stranger; for then the stranger is the author of the wrong, and the horse that he rides, or drives, is the mere passive instrument in his hands, and the owner of it, unless he have lent it for the purpose of the wrong, is as wholly guiltless as any other person. For in that case, the beast does not by the owner’s negligent keeping stray .upon the land of his neighbors.

It is substantially upon this ground that Tewksbury v. Bucklin, 7 N. H. Rep. 518 , was decided ; in which it was , held that a party having the custody of the cattle was answerable for the trespass which they committed by straying upon another’s inclosure.

The case finds that the cow “strayed along the road,” and committed the act complained of. It would not be just to hold the party to the strict meaning of a single word, if it appeared by the context to have been used inaccurately; but it appears distinctly that the animal, although driven by Heath some distance from the pasture in the direction of the locus in quo, was not driven upon it so as to be in his hands a mere instrument for committing a trespass. Heath’s- *154 trespass was upon the chatty of the defendant, but not upon the soil of the plaintiff. ’ He abandoned the cow, and she being no longer in his custody, strayed,” and involved the owner in the consequences ordinarily incident to permitting beasts to stray into the inclosures of others.

When Heath abandoned the cow, she was about twelve rods from the lands of the plaintiff. From that period she was no longer under the control of Heath, but was again in the legal possession of the defendant, and under his general custody and control; and like other owners having the care and custody of their beasts at the time, he is answerable in trespass for her act in straying upon the close in question, and grazing there.

The declaration was well. It is not necessary, in such cases, for the plaintiff to describe his close. If the defendant has occasion for a description, he can have it upon filing the proper plea. If he omits to do so, it is presumed that he consents that the plaintiff may prove the act to have been done upon any land in his possession within the limits of the town named in the writ. Wheeler v. Rowell, 6 N. H. Rep. 215 ; Green v. Jones, 1 Saund. 299, n.

For misdirection of the judge who tried the cause, the verdict must be set aside, arid a New trial granted.