268 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



applicable to our situation and the customs and habits of the 

 early settlers of the country, and inconsistent with our legis- 

 lation in regard to fences and stock." ®^ But this does not 

 mean that "for no breach of his fence and invasion of his 

 pasture by domestic animals could a land-owner recover 

 under our laws. It may be admitted that, if his enclosure 

 be sufficient to exclude all cattle of an ordinary disposition, 

 he would have the right to recover for the trespass of such as 

 were peculiarly vicious and prone to break fences." ^^ And 

 the owner of cattle is not authorized to enclose another's land 

 so as to reap from it those benefits which, as a rule, are in- 

 cident exclusively to ownership.** 



The same principles have been applied to the public lands 

 of the United States in a case where it was held that the plain- 

 tiff who asserted title to 350,000 acres out of 921,000 acres 

 should not have a bill granted to restrain the defendants from 

 using the public lands for their stock. The court said : "We 

 are of opinion that there is an implied license, growing out of 

 the custom of nearly a hundred years, that the public lands 

 of the United States, especially those in which the native 

 grasses are adapted to the growth and fattening of domestic 

 animals, shall be free to the people who seek to use them 

 where they are left open and unenclosed and no act of govern- 

 ment forbids this use. ... It has never been understood that 

 in those regions and in this country, in the progress of its set- 

 tlement, the principle prevailed that a man was bound to keep 

 his cattle confined within his own grounds, or else would be 

 liable for their trespasses upon the unenclosed grounds of his 

 neighbors. Such a principle was ill-adapted to the nature 

 and condition of the country at that time. Owing to the 



"' Pace V. Potter, 85 Tex. 473. And see Davis v. Davis, 70 id. 123; Fin- 

 ley V. Bradley (Tex. Civ. App.), 21 S. W. Rep. 609. 



" Clarendon Land Inv. & Ag. Co. v. McClelland, 86 Tex. 179. 



As to the offense of staking a horse on the enclosed land of another, 

 see Daly v. State (Tex. Cr.), 48 S. W. Rep. 515. 



" St. Louis Cattle Co. v. Vaught, i Tex. Civ. App. 388. 



