THE COMMON-LAW EULE RESTRAINING ANIMALS. 263" 



Statute was, in view, doubtless, of the improved condition of 

 the lands of the State, to abolish the former rule and take 

 from the owner of such animals the right previously existing 

 of allowing them to run at large. ... It is said the authority 

 to take up applies only to such animals as are at large with 

 the consent of, or by the fault of the owner. We do not 

 think so. The danger to the public of mischief from the in- 

 trusions of the animals is the same whether they are at large 

 with or without the fault of the owner." ^* 



In Oregon it was held in an early case that the common- 

 law rule was not in force.^^ This appears to have been de- 

 cided, however, on the construction of a particular statute, 

 as a later case holds that, in the absence of a statute changing 

 the common-law rule, one is not obliged to fence his lands 

 before he can maintain an action for trespass by cattle. The 

 statutes being more or less local in their character, this rule 

 may therefore be considered in force.^® 



In Pennsylvania the common-law rule was originally in 

 force.^^ An owner of cattle is, however, not liable for a tres- 

 pass by their pasturing upon unenclosed woodland. "Their 

 entry is, in strictness a trespass which, for its insignificance, 

 is not noticed by the law, probably on the foot of the maxim 

 de minimis, or perhaps because it is better that all waste lands 

 should be treated as common without stint. It certainly 

 saves vexatious litigation." ^* The efifect of the early statutes 

 was to make it necessary that the owner of improved lands 

 should fence them, both to restrain his own cattle and shut 



°' Sloan V. Hubbard, 34 O. St. 583. The decision in Marietta & Cine. 

 'S.. Co. V. Stephenson, supra, was held not inconsistent, as "that was an 

 action to recover for injuring cattle; and as they were at large without 

 the omission of reasonable care on the part of the owner, it was held 

 that he was not guilty of contributory negligence." 



^"Campbell v. Bridwell, s Oreg. 311. And see Moses v. So. Pac. R. 

 Co., 18 id. 385, where the same statement is made. Cf. the cases cited 

 infra. 



'' French v. Cresswell, 13 Oreg. 418. And see Walker v. Blooming- 

 camp (Oreg.), 43 Pac. Rep. 175; Fry v. Hubner (Oreg.), 57 id. 420. 



" Gregg V. Gregg, 55 Pa. St. 227. " Knight v. Abert, 6 Pa. St. 472. 



