276 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



Where the statutes allow cattle to run at large and the 

 owner of land built a barbed-wire fence sufficient to keep off 

 all the cattle that were in the neighborhood at the time, but 

 insufficient to keep off smaller cattle subsequently found 

 there, such as calves and yearlings, such owner was held liable 

 for the insufficiency of the fence.^"® Where a young stallion 

 escaped through a fence, the sufficiency thereof is a question 

 for the jury, though the fence was common among farmers 

 and usually considered safe.^^" Under a contract to maintain 

 a hedge until it should be sufficient to turn "ordinary stock," 

 that phrase means such stock as are permitted by law to run 

 at large.^^^ 



Where A.'s fence was built on B.'s land and treated as a 

 partition fence, it was held that A.'s land was enclosed as re- 

 quired by law and he might bring an action for the trespass 

 of B.'s cattle."^ 



In order that a defect in a fence may constitute a defence 

 in trespass, it should be specially pleaded. ■'^^ 



74. Nature and Kesults of the Trespass.— An action will lie for 

 the trespass of an animal irrespective of the extent of the tres- 

 pass or the amount of damage done. Some damage, if only 

 nominal, is always presumed.^^* In an English case, where 

 a horse bit and kicked a mare through a fence, and his owners 

 were held liable apart from any question of negligence. Lord 

 Coleridge said : "It is clear that in determining the question 

 of trespass or no trespass, the court cannot measure the 

 amount of the alleged trespass ; if the defendant place a part 

 of his foot on the plaintiff's land unlawfully, it is in law as 

 much a trespass as if he had walked half a mile on it. It has, 

 moreover, been held again and again that there is a duty on 



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



"° McIIvaine v. Lantz, 100 Pa. St. 586. 



'" Usher v. Hiatt, 2i Kan. 548. "' Moore z\ White, 45 Mo 206 



"" Blacklock V. MiUiken, 3 U. C. C. P. 34. 



"' Pierce v. Hosmer, 66 Barb. (N. Y.) 345. 



