Chapter XXIX: Section I: Trespass on Land by Animals

NOYES _v._ COLBY
SUPREME COURT, NEW HAMPSHIRE, JULY TERM, 1855.
_Reported in 30 New Hampshire Reports, 143._

Trespass, for breaking and entering the plaintiff’s close in Franklin.

Plea, general issue.

The plaintiff proved that towards night, on June 27, the defendant’s cow was upon his premises grazing, between his house and stable. There was no fence between his land and the highway.

The defendant then proposed to prove that, at that time he pastured his cow in a pasture, on the road to Salisbury, and that one Heath also pastured his cow in the same pasture. On the evening in question, when Heath drove home his own cow, he also let the defendant’s cow out of the pasture. He did this without the knowledge or assent of the defendant, and without any authority, and had never done so before, and after this transaction was requested by the defendant not to do so again. He drove the cow down the road until she came to the point where it connects with the road through the village of Franklin, about two hundred feet from the plaintiff’s land, when she strayed along the road and committed the trespass complained of.

The defendant contended that, under such circumstances he could not be held to be a trespasser merely from the fact that he owned the cow; that he had done no wrongful or improper act; that the act of Heath, being without his knowledge or assent, and without his authority, could not make him liable in trespass; that the action should not have been brought against him, but if any trespass had been committed, should have been brought against Heath.

There being no dispute about the facts, the Court ruled that the action could not be maintained; whereupon a verdict was taken for the defendant, upon which judgment was to be rendered, or it was to be set aside, and judgment rendered for the plaintiff for twenty-five cents damages, as this Court might order.[251]

WOODS, C. J. “A man 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 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 Blackstone 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 trespass was upon the chattel 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.

* * * * *

For misdirection of the judge who tried the cause, the verdict must be set aside, and a

_New trial granted_.[252]

BEARDSLEY, C. J., IN TONAWANDA R. CO. _v._ MUNGER
(1848) _5 Denio, 255, 267–268_.

The Court seem to have held that if the plaintiff’s oxen escaped from his enclosure after the exercise of “ordinary care and prudence in taking care of” them, he was not responsible for their trespass on the defendants’ land. This view of the law, we think, cannot be sustained. The plaintiff was bound at his peril to keep his cattle at home, or at all events to keep them out of the defendants’ close, and no degree of “care and prudence,” if the cattle found their way onto the defendants’ land, would excuse the trespass. It would be a new feature in the law of trespass, if the owner of cattle could escape responsibility for their trespasses by showing he had used “ordinary,” or even extraordinary “care and prudence” to keep them from doing mischief.[253]

TILLETT _v._ WARD
IN THE QUEEN’S BENCH DIVISION, NOVEMBER 27, 1882.
_Reported in Law Reports, 10 Queen’s Bench Division, 17._

Appeal by special case from the decision of the judge of the County Court of Lincolnshire, holden at Stamford.

The action was to recover £1 for the damage done to goods in the plaintiff’s shop.

It appeared that on the 15th of May, 1882, an ox of the defendant was being driven from the live-stock market in Broad Street, Stamford, along a public street called Ironmonger Street, to the defendant’s premises. Ironmonger Street has a paved carriage road with a foot pavement on either side, and the plaintiff was the occupier of an ironmonger’s shop in the street. The ox, after having gone for some distance down the paved carriage road of Ironmonger Street, driven by the defendant’s men, went for a short distance upon the foot pavement on the near or left-hand side, and was driven therefrom by one of the drovers in charge on to the carriage road, and after continuing for a farther distance upon such carriage road, turned again on the pavement about twelve yards from the plaintiff’s shop, and continued upon the pavement until it came opposite the plaintiff’s shop, when it passed through the open doorway into the shop and did damage to goods therein to the amount claimed. The ox was, as soon as possible after such entry and damage, driven by the defendant’s men from the shop to the carriage road and to defendant’s premises in another street; but they did not succeed in getting it out until about three-quarters of an hour from the time when it entered. No special act of negligence was proved on the part of the persons in charge of the ox, and there was no evidence that it was of a vicious or unruly nature, or that the defendant had any notice that there was anything exceptional in its temper or character, or that it would be unsafe to drive it through the public streets in the ordinary and usual way. It was proved that at the time the ox left the carriage-way the second time, one of the two men of the defendant in charge of the animal was walking by its side, having his hand upon it, and that the other man was walking about three yards in the rear of it. The two men in charge proved that they drove it unaccompanied by other cattle from the market, and they both declared that they did all they could under the circumstances to prevent it going on to the foot pavement and entering the open doorway of the plaintiff’s shop, and they stated that the movement of the ox from the carriage-way on to the foot pavement was sudden and could not by any reasonable or available means have been prevented. It was alleged by the defendant’s witnesses, and not contradicted, that it was a usual thing for several oxen to be driven from the Stamford market in charge of two men, and sometimes one man. It was admitted that it was not customary to drive oxen with halters, and that they would probably not go quietly if led by halters.

The County Court judge gave a verdict for the amount claimed, giving the defendant leave to appeal.

The question for the opinion of the Court was, whether upon the facts the plaintiff was entitled to the verdict.[254]

LORD COLERIDGE, C. J. In this action the County Court judge has found as a fact that there was no negligence on the part of the drivers of the ox, or, at all events, he has not found that there was negligence, and as it lies on the plaintiff to make out his case, the charge of negligence, so far as it has any bearing on the matter, must be taken to have failed.

Now, it is clear as a general rule that the owner of cattle and sheep is bound to keep them from trespassing on his neighbor’s land, and if they so trespass an action for damages may be brought against him, irrespective of whether the trespass was or was not the result of his negligence. It is also tolerably clear that where both parties are upon the highway, where each of them has a right to be, and one of them is injured by the trespass of an animal belonging to the other, he must, in order to maintain his action, show that the trespass was owing to the negligence of the other or of his servant. It is also clear that where a man is injured by a fierce or vicious animal belonging to another, that _prima facie_ no action can be brought without proof that the owner of the animal knew of its mischievous tendencies.

In the present case the trespass, if there was any, was committed off the highway upon the plaintiff’s close, which immediately adjoined the highway, by an animal belonging to the defendant which was being driven on the highway. No negligence is proved, and it would seem to follow from the law that I have previously stated that the defendant is not responsible. We find it established as an exception upon the general law of trespass, that where cattle trespass upon unfenced land immediately adjoining a highway the owner of the land must bear the loss. This is shown by the judgment of Bramwell, B., in Goodwyn _v._ Cheveley, 28 L. J. (Ex.) 298. That learned judge goes into the question whether a reasonable time had or had not elapsed for the removal of cattle who had trespassed under similar circumstances, and this question would not have arisen if a mere momentary trespass had been by itself actionable. There is also the statement of Blackburn, J., in Fletcher _v._ Rylands, L. R. 1 Ex. 265, that persons who have property adjacent to a highway may be taken to hold it subject to the risk of injury from inevitable risk. I could not, therefore, if I were disposed, question law laid down by such eminent authorities, but I quite concur in their view, and I see no distinction for this purpose between a field in the country and a street in a market town. The accident to the plaintiff was one of the necessary and inevitable risks which arise from driving cattle in the streets in or out of town. No cause of action is shown, and the judgment of the County Court judge must be reversed.

STEPHEN, J. I am of the same opinion. As I understand the law, when a man has placed his cattle in a field it is his duty to keep them from trespassing on the land of his neighbors, but while he is driving them upon a highway he is not responsible, without proof of negligence on his part, for any injury they may do upon the highway, for they cannot then be said to be trespassing. The case of Goodwyn _v._ Cheveley, _supra_, seems to me to establish a further exception, that the owner of the cattle is not responsible without negligence when the injury is done to property adjoining the highway,—an exception which is absolutely necessary for the conduct of the common affairs of life. We have been invited to limit this exception to the case of high roads adjoining fields in the country, but I am very unwilling to multiply exceptions, and I can see no solid distinction between the case of an animal straying into a field which is unfenced or into an open shop in a town. I think the rule to be gathered from Goodwyn _v._ Cheveley, _supra_, a very reasonable one, for otherwise I cannot see how we could limit the liability of the owner of the cattle for any sort of injury which could be traced to them.

_Judgment for defendant._[255]

COOLEY ON TORTS, 2D ED., 398–400.

The statutes which, under some circumstances, or for some purposes,
require lands to be fenced by their owners, are so various in the
several States that it is not easy even to classify them. Some of them
provide merely that unless the owner shall cause his lands to be
fenced with such a fence as is particularly described, he shall
maintain no action for the trespasses of beasts upon them. These
statutes are generally limited in their force to exterior fences, and
are intended as a part of a system under which cattle are or may be
allowed to depasture the highway. In some States, from the earliest
days, beasts have been allowed to roam at large in the highways and
unenclosed lands, either by general law or on a vote of the township
or county to that effect; a futile permission, if owners of lands are
not required to fence against them. A more common provision is one
requiring the owners of adjoining premises to keep up, respectively,
one-half the partition fence between them, this being apportioned for
the purpose by agreement, by prescription, or by the order of
fence-viewers. A neglect of duty under these statutes would not only
preclude the party in fault from maintaining suit for injuries
suffered by himself in consequence thereof, but it would seem that if
the domestic animals of his neighbor should wander upon his lands,
invited by his own neglect, and should there fall into pits, or
otherwise receive injury, he would be responsible for this injury, as
one occurring proximately from his own default. The statutes which
require the construction of partition fences do so for the benefit
exclusively of the adjoining proprietors. These proprietors may, at
their option, by agreement, dispense with them, and even if they do
not agree to do so, but fail to maintain them as the law contemplates,
still, if the cattle of the third persons come wrongfully upon one
man’s lands, and from there enter the adjoining enclosure, it is no
answer to an action of trespass brought by the owner of the latter
that the partition fence provided for by the law was not
maintained.[256]

WAGNER _v._ BISSELL
SUPREME COURT, IOWA, DECEMBER TERM, 1856.
_Reported in 3 Iowa Reports, 396._

Appeal from the Jones District Court.

This was an action of replevin for certain cattle. Defendant answered, denying the plaintiff’s right to the possession, and also alleging as a special ground of defence, that said cattle (which he admits to be the property of plaintiff) did on the 17th day of August, 1856, trespass upon the uninclosed land of defendant, and while so trespassing, and after he had suffered damage to the amount of fifty dollars, he, said defendant, distrained the same, as he had a right to do; and while thus lawfully distrained, and while he thus rightfully had the possession, the said plaintiff replevied the said cattle, without paying, or offering to pay, for the damages sustained. To this answer the plaintiff demurred, which was sustained. Defendant refused to answer over, and judgment being against him, he appeals.[257]

WRIGHT, C. J. [After deciding a point of pleading.] There is then but one question in the case, and that is, whether the defendant, for the reasons stated in his answer, was entitled to the possession of the property, as against the plaintiff and owner. We are of opinion that he was not, and that the demurrer was therefore properly sustained.

That at common law, every man was bound to keep his cattle within his own close, under the penalty of answering in damage for all injuries arising from their being abroad, is admitted by all. And a part of the same rule is, that the owner of land is not bound to protect his premises from the intrusion of the cattle of a stranger, or third person; and that if such cattle shall intrude or trespass upon his premises, whether inclosed or not, he may, at his election, bring his action to recover the damages sustained, or distrain such trespassing animals, until compensated for such injury. We need not at present stop to ascertain the origin or reason of this rule. It is sufficient to say, that as a principle of the common law, it is well, and we believe universally settled. We are then led to inquire, whether, independent of any statutory provisions, this rule is applicable to our condition and circumstances as a people; and if it is, then whether it has or has not, been changed by legislative action.

Unlike many of the States, we have no statute declaring in express terms the common law to be in force in this State. That it is, however, has been frequently decided by this Court, and does not, perhaps, admit of controversy. But while this is true, it must be understood that it is adopted only so far as it is _applicable_ to us as a people, and may be of a general nature. At this time we need only discuss the question whether the principle contended for is applicable; for there can be no fair ground for claiming that it is not of a general nature.

We have assumed that it is only so much of the common law as is _applicable_ that can be said to be in force, or recognized as a rule of action in this State. To say that every principle of that law, however inapplicable to our wants or institutions, is to continue in force, until changed by some legislative rule, we believe has never been claimed, neither indeed could it be, with any degree of reason. What is meant however, by the term “applicable,” has been thought to admit of some controversy. As stated by Catron, J., in the dissenting opinion in the case of Seely _v._ Peters, 5 Gilm. 130, “Does it mean applicable to the nature of our political institutions, and to the genius of our republican form of government, and to our Constitution, or to our domestic habits, our wants, and our necessities?” He then maintains that the former only is meant, and that to adopt the latter is a clear usurpation of legislative power by the courts. A majority of the Court held in that case, however, as had been previously decided in Boyer _v._ Sweet, 3 Scam. 121, “that in adopting the common law, it must be applicable to the habits and condition of our society, and in harmony with the genius, spirit, and objects of our institutions.” And we can see no just or fair objection to this view of the subject. Indeed, there would seem to be much propriety in saying that the distinction attempted is more speculative than practical or real. For what is applicable to our wants, habits, and necessities as a community or state, must necessarily to some extent be determined from the nature and genius of our government and institutions. Or, in other words, to determine whether a particular principle harmonizes with the spirit of our institutions, we must look to the habits and condition of the society which has created and lived under these institutions. We have adopted a republican form of government, because we believe it to be better suited to our condition, as it is to that of all people,—and thereunder we believe our wants, rights, and necessities, as individuals and as a community, are more likely to be protected and provided for. And the conclusion would seem to fairly follow, that a principle or rule which tends to provide for, and protect our rights and wants, would harmonize with that form of government or those institutions which have grown up under it.

But, however this may be, we do not believe that in determining as a Court, whether a particular rule of the unwritten law is applicable, we are confined alone to its agreement or disagreement with our peculiar form of government. To make the true distinction between the rules which are, and are not, applicable, may be frequently embarrassing and difficult to courts.

Where the common law has been repealed or changed by the constitutions of either the States or national government, or by their legislative enactments, it is, of course, not binding. So also, it is safe to say, that where it has been varied by custom, not founded in reason, or not consonant to the genius and manners of the people, it ceases to have force. Bouvier’s Law Dict., title Law, Common. And in accordance with this position, are the following authorities: “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.” Van Ness _v._ Packard, 2 Peters, 137. And see other remarks of the learned judge, in delivering the opinion in that case, page 143, which have a bearing upon the principal question involved in this.

In Goring _v._ Emery, 16 Pick. 107, in speaking of what parts of the common law and the statutes of England are to be taken as in force in Massachusetts, Shaw, C. J., says: “That what are to be deemed in force is often a question of difficulty, depending upon the nature of the subject, the difference between the character of our institutions, and our general course of policy, and those of the parent country, and upon fitness and usage.” And in The Commonwealth _v._ Knowlton, 2 Mass. 534, it is said that “our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were adjudged inapplicable to their new state and condition.”

In Ohio the rule is laid down as follows: “It has been repeatedly decided by the courts of this State that they will adopt the principles of the common law, as the rule of decision, so far only as those principles are adapted to our circumstances, state of society, and form of government.” Lindsley _v._ Coats, 1 Ham. 243; see also Penny _v._ Little, 3 Scam. 301.

Is the rule of the common law, relied upon by the appellant in this case, applicable to our situation, condition, and usage, as a people? Is it in accordance with our habits, wants, and necessities? As applied to this State, is it founded in reason and the fitness of things? The legislature has certainly not so regarded it. On the contrary, we hope to be able to show that what legislation we have clearly recognizes the opposite rule. At present, we are considering the question without reference to any legislative interpretation or action.

These same inquiries were substantially discussed in the case of Seely _v._ Peters, above referred to; and as we could not hope to answer them more satisfactorily than is there done, we adopt the language used in that case, the appropriateness of which, as applied to this State, will be fully appreciated when we reflect that in their resources and necessities, Illinois and Iowa are almost twin sisters. Both alike are agricultural States—both alike have large and extensive prairies—and are alike destitute of timber, as compared with the eastern and older States of the Union.

Says Trumbull, J., in delivering that opinion: “However well adapted the rule of the common law may be to a densely populated country like England, it is surely but ill-adapted to a new country like ours. If this common-law rule prevails now, it must have prevailed from the time of the earliest settlement of the State, and can it be supposed that when the early settlers of this country located upon the borders of our extensive prairies, that they brought with them, and adopted as applicable to their condition, a rule of law requiring each one to fence up his cattle? that they designed the millions of fertile acres stretched out before them, to go ungrazed, except as each purchaser from the government was able to inclose his part with a fence? This State is unlike any of the eastern States in their early settlement, because, from the scarcity of timber, it must be many years yet before our extensive prairies can be fenced; and their luxuriant growth, sufficient for thousands of cattle, must be suffered to rot and decay where it grows, unless settlers upon their borders are permitted to turn their cattle upon them. Perhaps there is no principle of the common law so inapplicable to the condition of our country and the people as the one which is sought to be enforced now, for the first time, since the settlement of the State. It has been the custom of Illinois, so long that the memory of man runneth not to the contrary, for the owners of stock to suffer them to run at large. Settlers have located themselves contiguous to prairies, for the very purpose of getting the benefit of the range. The right of all to pasture their cattle upon uninclosed ground is universally conceded. No man has questioned this right, although hundreds of cases must have occurred where the owners of cattle have escaped the payment of damages on account of the insufficiency of the fences through which their stock have broken; and never till now has the common-law rule that the owner of cattle is bound to fence them up been suffered to prevail, or to be applicable to our condition. The universal understanding of all classes of community, upon which they have acted by inclosing their crops and letting their cattle run at large, is entitled to no little consideration in determining what the law is; and we should feel inclined to hold, independent of any statutes upon the subject, on account of the inapplicability of the common-law rule to the condition and circumstances of our people, that it does not, and never has, prevailed in Illinois.”

The learned judge then proceeds to show that it is not necessary to assume that ground in the case before him, for the reason, as he says, that their entire legislation clearly shows that this rule of the common law never prevailed in that State. In like manner, we now propose to refer to some of our own legislation which, we think, will clearly show that it was never supposed to prevail in this State. [Here WRIGHT, C. J., stated, and commented upon, various statutes.]

This brief reference to these several acts must be sufficient, in our opinion, to satisfy any mind that the legislature never understood that the rule of the common law prevailed in this State. We do not maintain that these provisions expressly change the common-law rule. And did we believe that this principle had, at any time, been well established in this State, we should perhaps hold that it had not been changed by these different statutes. Where, however, it is, to say the least, doubtful whether the rule contended for is in accordance with our situation, condition, and wants as a people, where for a series of years there has been no legislation recognizing the existence of such a rule, and where custom and habit have uniformly negatived its existence, we feel entirely justified in giving force to these acts which, if they do not expressly, certainly do impliedly, change the unwritten law.

* * * * *

_Judgment affirmed._[258]

BEINHORN _v._ GRISWOLD
SUPREME COURT, MONTANA, JULY 14, 1902.
_Reported in 27 Montana Reports, 79._

PIGOTT, J.[259] Action to recover damages for injuries alleged to have been caused by the negligence of the defendant. The complaint states that the defendant negligently left exposed a vat containing poisonous liquid; that by reason of such negligence certain cattle of plaintiff and of one Holm drank from the vat some of the liquid, and died from the effects of the poison; and that Holm assigned his demand for damages to the plaintiff. The answer puts in issue the allegation of negligence, and avers that the death of the cattle was caused by the carelessness of the plaintiff and Holm. The plaintiff secured a judgment, and the defendant moved for a new trial on several grounds, one being the insufficiency of the evidence to prove negligence on the part of the defendant. From the order denying a new trial the defendant has appealed.

The facts upon which the plaintiff bases his allegations of negligence are substantially these: During the year 1898 the defendant was the lessee in possession of the Non-Such gold mine and mill site. The property was not inclosed by a legal fence. For the proper conduct of his mining operations he employed the cyanide process, using large quantities of poisonous chemicals, consisting principally of cyanide of potassium, which he diluted with water, and kept in suitable receptacles on the surface of the mining property, but not sufficiently covered to prevent easy access to the poisonous solution. In appearance it resembled water. Cattle of the plaintiff and of Holm, while ranging on the public domain, wandered over to and upon the defendant’s mine and mill site, and there drank the poisonous liquid contained in the vats or tubs. The defendant knew that the cattle were in the habit of straying upon his uninclosed property, and he had driven them away whenever he saw them there.

The plaintiff insists there is but one question involved, which he states thus: Is a “landowner who negligently leaves exposed upon his uninclosed premises, where he knows stock are wont to stray, dangerous places or substances, whereby another’s cattle, straying thereon, are injured, liable for such injury?” He argues that, as the defendant’s mining property was not inclosed by a legal fence, the cattle were not trespassing upon his property, but were rightfully thereon, and that therefore he owed to the plaintiff the duty so to use his property and conduct his business as not to injure the plaintiff’s cattle; that, in failing to cover the poisonous solution so as to prevent the cattle from drinking of it, he violated this alleged duty, and as such negligence resulted in the death of the cattle, and consequent loss to the plaintiff, the defendant is liable in damages. In support of his contention the plaintiff cites Monroe _v._ Cannon, 24 Montana Reports, 316 (61 Pac. 863, 81 Am. St. Rep. 439), where the owner of pasture land was held entitled to recover the value of grass consumed by bands of sheep deliberately and intentionally driven on it by the herder in charge of them; the opinion containing the following language: “If in the case now under consideration the damage sustained by respondent had resulted from trespasses committed by cattle or sheep or other animals named in the statute, lawfully at large, and not under the direction and control of their owner, then appellant’s position would be sound.” Neither this language, nor anything said in the opinion, lends countenance to the contention of the plaintiff in the case at bar. The decision does not declare or define any duty owing by the landowner to the owner of straying cattle. These observations apply also to Section 3258 of the Political Code, which reads: “If any cattle, horse, mule, ass, hog, sheep, or other domestic animal break into any inclosure, the fence being legal, as hereinbefore provided, the owner of such animal is liable for all damages to the owner or occupant of the inclosure which may be sustained thereby. This section must not be construed so as to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law.” Even if it be conceded that the cattle of the plaintiff were not wrongfully upon defendant’s property, no liability would be incurred from the fact that they were injured while there, unless it was the defendant’s duty to protect from injury all cattle on his property whose trespass was not of such a nature as to render their owners liable for the trespass. Counsel for the plaintiff urge that, if these cattle were not wrongfully on the defendant’s property, they must have been rightfully there; asserting that if there was no remedy by action, there could not be a trespass. To this we cannot yield assent.

The owner is entitled to the exclusive possession of his land, whether fenced or not; and it is beyond the power of the legislature to prescribe, or of custom to create, a right in another to occupy the land or enjoy its fruits. Either written law or custom may withhold from the owner who does not fence his land a remedy for loss suffered by reason of casual trespasses by cattle which stray upon it, and may give a remedy for such trespasses to those only who inclose their land. By custom as well as by statute the common law of England has been so modified in Montana. This is undoubtedly a legitimate exercise of the police power. It falls far short, however, of conferring a legal right to dispossess the nonfencing owner. He may at pleasure lawfully drive the intruding cattle from his land, and keep them away from it. This is his right, for the cattle are trespassing. The owners of domestic animals hold no servitude upon or interest, temporary or permanent, in the open land of another, merely because it is open. If the landowner fails to “fence out” cattle lawfully at large, he may not successfully complain of loss caused by such live stock straying upon his uninclosed land. For under these circumstances the trespass is condoned or excused,—the law refuses to award damages. While the landowner, by omitting to fence, disables himself from invoking the remedy which is given to those who inclose their property with a legal fence, and while the cattle owner is thereby relieved from liability for casual trespasses, it is nevertheless true that the cattle owner has no _right_ to pasture his cattle on the land of another, and that cattle thus wandering over such lands are not rightfully there. They are there merely by the forbearance, sufferance, or tolerance of the nonfencing landowner; there they may remain only by his tolerance.

The cattle-owning plaintiff did not owe to the land-owning defendant the duty to fence his cattle in; the latter did not owe to the former the duty to fence them out; neither of them was under obligation to the other in that regard. The defendant is not liable in this action unless he was negligent. There cannot be negligence without breach of duty. Hence, manifestly, the defendant was not guilty of negligence in omitting to prevent the plaintiff’s cattle from going upon his unfenced land.

As has just been said, the straying of the plaintiff’s cattle upon the defendant’s land did not involve the violation of any legal duty upon the part of the defendant. There would therefore seem to be no basis for the plaintiff’s charge of negligence on the part of the defendant, unless it consists in the defendant’s alleged failure to protect the cattle from injury while on his land. The damage resulted from a permissive, not an active, cause of injury. We are asked to hold that the law imposed upon the defendant, in addition to the duty of refraining from intentional or wanton injury to the cattle, the duty so to use his property and so to conduct his mining operations thereon as to avoid all dangers to which these trespassing beasts might expose themselves. Counsel invoke the provisions of Section 2296 of the Civil Code, which is declaratory of the common law: “Every one is responsible ... for an injury occasioned to another by his want of ordinary care or skill in the management of his property....” Giving to the principle thus expressed full recognition, and measuring the rights of the parties by the test of negligence thus furnished, we are unable to find in the record evidence of acts or omissions by the defendant constituting negligence in the management of his property. But the plaintiff contends that, irrespective of Section 2296, the defendant has been guilty of negligence in so using his property as to imperil, and in this case actually injure, the property of another. We think the principles which he invokes have no application to the facts disclosed by the record. To a naked trespasser or mere licensee by sufferance (if the expression may correctly be used) the landowner owes the duty to refrain from any wilful or wanton act causing injury to his person or chattels, and, after discovering that the trespasser is in imminent danger or immediate peril, to use reasonable care to avoid an active cause of injury. Egan _v._ Montana Central Railway Co., 24 Montana Reports, 569, 63 Pac. 831. The rule is different in respect of those who go upon property because of the owner’s invitation, either express or implied. As to such persons he is bound, at his peril, to use reasonable care and diligence in keeping his property in safe condition. To a mere licensee or naked trespasser the landowner does not owe the active duty of being diligent or using care in providing against the danger of accident. The distinction is well expressed in Sweeny _v._ Old Colony & Newport Railroad Co., 10 Allen, 368, 87 Am. Dec. 644:

[A long quotation from the opinion in that case is omitted.]

The methods pursued by the defendant in the management and use of his property involved no danger to the plaintiff or his cattle, nor exposed either to risk, so long as he and they remained within the limits of the plaintiff’s rights. The contention of the plaintiff rests upon the erroneous theory, heretofore considered, that the cattle owners hold a personal servitude upon, or the right of commons or profit in, all unfenced land, by virtue of which they are supposed to be entitled, as of right, to use for grazing and pasture all of the uninclosed lands of other persons. Such burden upon or easement in gross in open lands has not been granted, and does not exist. We have already decided that such use, while it does not constitute an actionable wrong, is not the exercise of a legal right; and as the cattle owner possessed no right to have his live stock upon the defendant’s land, and the latter was clothed with the unquestioned right to drive them away because they were not rightfully there, clearly the defendant had no active duty in respect of them while there. He was, of course, bound to refrain from intentional or wanton injury; if he stood by and knowingly permitted them to drink of the poisonous solution, without making an effort to prevent them from doing so, he might, perhaps, be liable; but neither of these conditions is in the case at bar.

We think there is no proof in the record which justifies the application of the doctrine of invitation, enticement, allurement or attraction. Deane _v._ Clayton, 7 Taunt. 489, 531, 533; Jordin _v._ Crump, 8 Mees. & W. 782; Ponting _v._ Noakes, (1894) 2 Q. B. 281; Stendal _v._ Boyd, 67 Minn. 279, 69 N. W. 899; Twist _v._ Railroad Co., 39 Minn. 164, 39 N. W. 402, 12 Am. St. Rep. 626. The soundness of the principles upon which the so-called “turn-table” and similar cases are supported is not presented for decision.

We have read the opinions which are opposed to the conclusions here announced. They need not be referred to or discussed. We are entirely satisfied that our conclusions are based upon correct fundamental principles.

The order refusing a new trial is reversed, with costs to the appellant, and the cause is remanded.

_Reversed and remanded._[260]

MR. CHIEF JUSTICE BRANTLY: I concur.

MR. JUSTICE MILBURN: Considering only the facts appearing in this case, I concur in the reversal of the order denying a new trial. I do not concur in all that is said in the opinion with reference to absence of duty owing by one person to another who is trespassing upon the premises of the former, or to the owner of live stock which wander upon such premises.