152 TRANSACTIONS OF THE 



seek food on the rich herbage of his neighbors' grain fields ? The error 

 of the statute consists in the fact that it does not place the matter of 

 boundary rights between landed proprietors- on the same footing that it 

 does the community in its police regulations. Suppose, for illustration, 

 that an individual denying the rights of another should make it danger- 

 ous for the latter for him to reside in his place of domicil ; would it be 

 according to the theory of justice that he, a peaceful citizen, living in 

 the retiracy of his own premises, should be obliged to inclose himself 

 within impassable walls to obtain securit} 7 against the aggressions and 

 trespasses of every intruder? Is it not rather the legal intention that 

 prison walls should be built for the reception of involuntary rather than 

 voluntary inmates ? It certainly would be a new rendering of justice 

 to compel the inoffensive to seek for safety under lock and key, and 

 grant license to the desperado to commit outrage upon him with impu- 

 nity whenever he was unfortunate enough to be met outside of his bar- 

 ricades. Yet this theory is precisely what is practiced and applied to 

 the relations between landed proprietors. That there is any equity or 

 justice in this absurd custom, no person has ever yet attempted to 

 affirm. True, the custom is as old as written law, and this is the chief 

 obstacle to its overthrow. Tenaciously, however, as it has been adhered 

 to, it is giving way before a more enlightened and thinking agriculture. 

 Indeed, the march of progress inaugurated in the agricultural indus- 

 tries by the substitution of machinery foe- manual labor, has so cheap- 

 ened farming, by increasing the production of articles of first necessity, 

 that old communities have been forced to modulate their customs and 

 usages, to conform to the changes which have been brought about by 

 the settlement of new districts, where new ideas are of more ready 

 inception ; hence, old communities are no longer able to avert a discus- 

 sion of the fence question. On the earnest and persistent importunity 

 of cattle and horse growers, the Legislature, during the session of 

 eighteen hundred and fifty-seven, were induced to pass an Act which 

 forbade sheep from being herded or grazed on the lands or possessory 

 claims of others than the owners of said sheep. This only applied to 

 the Counties of Marin and Sonoma. In the next session the law was 

 made to extend to several other counties, and in eighteen hundred and 

 fifty-nine it was made operative in still more counties also. An infringe- 

 ment of the Act subjected parties to severe penalties in the way of 

 fines. Ineffectual efforts were made" by wool growers from time to time 

 to get this Act repealed, but the Legislature wisely determined to not 

 interfere with a law which simply protected the owner in the undis- 

 turbed use of his own land. If it is right to prohibit sheep from tres- 

 passing on the land of other persons than that of the owners of said 

 sheep, why should it not be equal]} 7 just that cattle, horses, mules, and 

 hogs, should not also be prohibited from herding on the land or posses- 

 sory claims of others than the owners of said cattle, horses, mules, and 

 hogs ? The Legislature, in enacting what is called the Sheep LaAv, took 

 the first practical step toward the repeal of all fence laws, as this- Act 

 has the effect of repealing all fence laws so far as sheep are concerned. 

 Most people will affect to believe that the subject of abolishing the 

 fence laws is surrounded with intricate difficulties and insurmountable 

 obstacles. This is a grave and inexcusable error. All that is re- 

 quired to overthrow the fence statute is simply to amend the Sheep Law 

 so that it shall apply as well to all other kinds of farm stock. Notwith- 

 standing that stock growers, with the exception of those subject to the 

 penalties of the Sheep Law, have enjoyed a sort of freebooters' privilege 



