ABROGATION OF THE COMMON-LAW RULE. 269 



scarcity of means for enclosing lands and the great value of 

 the use of the public domain for pasturage, it was never 

 adapted or recognized as the law of the country, except as 

 it might refer to animals known to be dangerous and per- 

 mitted to go where their dangerous character might produce 

 evil results. Indeed, it is only within a few years past, as the 

 country has been settled and become highly cultivated, all 

 the land nearly being so used by its owners or their tenjmts, 

 that the question of c-ompelling the owner of cattle to keep 

 them confined has been the subject of agitation. Nearly all 

 the States in early days had what was called the fence law, 

 a law by which a kind of fence, sufficient in a general way to 

 protect the cultivated ground from cattle and other domestic 

 animals which were permitted to run at large, was prescribed. 

 The character of this fence in most of the statutes was laid 

 down with great particularity, and, unless it was in strict con- 

 formity to the statute, there was no liability on the part of 

 the owner of cattle if they invaded the enclosure of a party 

 and inflicted injury on him. If the owner of the enclosed 

 ground had his fence constructed in accordance with the re- 

 quirements of the statute, the law presumed then that an ani- 

 mal which invaded the enclosure was what was called a 

 breachy animal, was not such animal as should be permitted 

 to go at large, and the owner was liable for the damages done 

 by him. Otherwise the right of the owner of all domestic 

 animals to permit them to run at large, without responsibility 

 for their getting upon the lands of his neighbor, was con- 

 ceded." «s 



72. Division Fences Where by statute, written agreement 



or prescription adjoining land-owners are severally bound to 

 keep up their own portions of a partition fence, each is Uable 

 for the trespasses of his own cattle through the portion of the 

 fence which he is bound to repair.^** And it is immaterial 



'= Buford V. Houtz, 133 U. S. 320. °° Cooley Torts, 2d ed., 399, 400. 

 And neither can recover where his negligence caused the trespass: Car- 



