264 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



out those of his neighbors, and without such fence he could 

 not maintain trespass.^" This does not apply where the duty 

 to fence is common to two adjoining land-owners but is 

 waived by mutual consent : in that case each is liable for the 

 trespass of his cattle.^" By a late statute the earlier ones are 

 repealed and the rights of the owners of cattle and land are 

 left as they were at the common law : the owner of cattle sued 

 for their trespass must show, to prevent recovery, that he 

 kept or tried to keep his cattle in by a suiScient fence. *^ But 

 this statute did not repeal one that required party-line fences 

 to be maintained sufificient to restrain the tendency of stock 

 to roam.^^ 



The common-law rule is in force in Rhode Island.^^ It 

 was held not to be in South Carolina ;^* but the general stock 

 law prohibits the running at large of stock, and an act ex- 

 empting certain land from the benefit thereof was held un- 

 constitutional as a "taking" of private property by authoriz- 

 ing land to be taken for the building of a fence to enclose a 

 pasture.^^ 



In Vermont the common-law rule prevails,^® and extends 

 to the case of division fences. "The statute imposing the 

 duty on adjoining proprietors of land to erect and maintain 

 fences recognized the same principle. For the object and 

 design of. fencing is not to keep the cattle of others ofif their 

 premises, but to keep their own at home. The owner of a 

 close is not required to guard against the intrusion of cattle 



" Gregg V. Gregg, supra. '° Milligan v. Wehinger, 68 Pa. St. 235. 



" Barber v. Mensch, 157 Pa. St. 390; Arthurs v. Chatfield, 9 Pa. Co. 

 Ct. 34. 



As to statutes regulating swine, see Mitchell v. Wolf, 46 Pa. St. 147; 

 Stewart v. Benninger, 138 id. 437. 



"^ Erdman v. Gottshall, 9 Pa. Super. Ct. 295. 



'^ Tower v. Providence & W. R. Co., 2 R. I. 404. 



" Murray v. So. Car. R. Co., 10 Rich. L. (S. C.) 227. 



•'" Fort V. Goodwin, 36 S. C. 445. And see Smith v. Bivens, 56 Fed. Rep. 

 ,352, where this case was followed. 



"" Keenan v. Cavanaugh, 44 Vt. 268. 



And see Town v. Lamphire, 36 id. loi, as to restraining rams. 



