THE COMMON-LAW RULE RESTRAINING ANIMALS. 261 



fencing or whether the animals are breachy or accustomed to 

 do mischief.^" "But this was not the rule in the early settle- 

 ment of this State. It was not then applicable to our circum- 

 stances." ^^ 



In Kansas the same rule has been held to be in force, and 

 where adjoining owners fence their lands in common, each 

 must take care of his own cattle and is liable if they wander 

 on the other's land. "The statutes do not require the parties 

 to build partition fences." ^^ While it has been held, how- 

 ever, that any statute authorizing cattle to run at large on 

 the private property of individuals would be unconstitutional, 

 a statute requiring land to be fenced and enacting that no 

 action shall lie for injuries by cattle unless such fence is built 

 IS in force and amounts practically to an abrogation of the 

 common-law rule. "The owner of real estate does not use 

 reasonable and ordinary care and diligence to protect his 

 property from the intrusion of roaming cattle unless he en- 

 closes it with a lawful fence. And if he receives any injury 

 through the want of such lawful fence, he is in about the same 

 condition as though he received injury in any other way 

 through his own negligence." ^^ And an act excluding cer- 

 tain counties for a time from the operation of this statute was 

 held unconstitutional as not being of uniform operation 

 through the State.^* 



In Maine this rule is in force except so far as division fences 

 are concerned, and where there is no obligatory fence each 

 occupant is obliged to keep his animals oS the adjoining 



'° Stone V. Kopka, loo Ind. 458. 



" Mich. South. & N. I. R. Co. v. Fisher, 27 Ind. 96. 



" Baker v. Robbins, 9 Kan. 303. 



" Un. Pac. R. Co. v. Rollins, 5 Kan. 167. And see Caulkins v. Mathews, 

 Ibid. 191; Larkin v. Taylor, Ibid. 433; Fillmore v. Booth, 29 id. 134; Win- 

 grove V. Williams, 6 Kan. App. 262. 



It is not a misdemeanor in Kansas to drive horses on land and allow 

 them to destroy growing grass: State v. Tincher, 57 Kan. 136. 



" Darling v. Rodgers, 7 Kan. 592. 



