Ml. CATTLE STRAYING ON HIGHWAY. 



which constitutes the fence is dug out from his land, as, for instance, 

 if ti small portion of nninclosed land near a public or private way is 

 left out of the enclosure, to protect and secure the occupation of that 

 part of the land which is inclosed, that in point of law is a part of the 

 close on which the enclosure is made. But the presumption that 

 waste land adjoining a road belongs to the owner of the adjoining in- 

 closed land, a])[tlics only to cases between the freeholder or copyholder, 

 or those claiming under them, and the lord and those claiming under 

 him ; and does not ap[)ly to cases between freeholder and freeholdei-, 

 where both claim under the same title {White v. Bill). Where the 

 occupier of a field called The Hall Close took down the old fence and 

 added to the field a strip of land adjoining a public road, in an action 

 for a trespass committed upon the strip of land about a year after it 

 had been so taken in, the declaration described the locus in quo as The 

 Hall Close, and it was held that it was properly described {Brounilow 

 V. Thomlinson, 1 M. & Gr. 484). 



27 & 28 Vict. c. 101, s. 25, repeals the 74th section of the 

 Highway Act, 5 & 6 Will. IV. c. 50, and renders the owner liable to a 

 penalty if cattle, horses, sheep, or swine are found lying about a 

 highway "notwithstanding they are under the control of a keeper at 

 the time," Lcmrcncc v. King, 3 L, R. Q. B. 345 ; and an owner of 

 cattle is liable to a penalty if his cattle are found straying on the 

 metalled part of a highway notwithstanding he' has a right of pasturage 

 on the sides of it, Goldinij v. Sloclcing, 4 L. Pt. Q. B. 516 ; and Freestone 

 V. Casswell, 4 L. R. Q. B. 519. 



The question of raitwdij fences was slightly touched upon in Sliurrod 

 Y. The London and Xorth Western Raihvai/ Comjiany, where some sheep 

 got on the railway after dark, in consequence of defect of fences, and 

 were run over by an express train. It was lield that trespass did not 

 lie against the company, and that if the cattle had a right to be on the 

 railway, the plaintiff's remedy was l_)y action on the case, for causing 

 the engine to be driven in such a way as to injure that right : but that 

 if the cattle were altogether wrong-doers, there was no neglect or mis- 

 conduct for which the company were responsible. And per Pcirlce B., 

 " If the sheep had any excuse for being there, as if they had escaped 

 through defect of fences which the company should have kept up, they 

 were not wrong-doers, though they had no right to be there ,•• and 

 their damage is a consequent damage from the wrong of the defen- 

 dants in letting their fences be incomplete or out of repair, and may be 

 recovered accordingly in an action on the case." This case was 

 followed by Fawcett v. Yorlc cmd Korth Midland Faihrai/ Comjuinij. 

 The plaintiff's* horses had leaped over the fence of a field, in which 



