280 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



be restricted or rendered onerous by the sweeping liability 

 thus imposed. . . The principle must be, it would seem, 

 that the land-owner who does not choose to protect his land 

 from the road cannot impose a liability so burdensome to the 

 usual and legitimate use of the highway on the owner of ani- 

 mals." 132 



Accordingly, where cattle properly driven upon the high- 

 way escape upon unfenced adjoining land, their owner is not 

 liable if he makes a reasonable effort to remove them and 

 prevent damage.^^^ So, where the defendant was using cat- 

 tle in repairing a highway and they escaped from his control 

 without his fault and ran on the plaintiff's land, the defendant 

 was held not liable in trespass.^^* It is otherwise if they pass 

 into a second close. As was said in a Massachusetts case: 

 ^'The principle of the common law which requires that each 

 should keep his cattle on his own land is so far modified as to 

 hold the owner not liable for the trespass of his cattle which, 

 passing along the highway and being properly managed 

 therein, casually wander into the unfenced lots bounding 

 thereon, provided he removes them with reasonable prompt- 

 ness. But the cattle are not in such case lawfully upon such 

 lots. They are there only under such circumstances that their 

 trespass, being casual and such as could not have been pre- 

 vented by reasonable care, is held excusable and this is all. 

 That they should be rightfully and lawfully upon land, the au- 

 thority or consent of the owner of the close is necessary, and 

 •even if he is without a remedy for the injury they may cause 

 him, the owner of the cattle does not acquire his rights as 

 against the owners of adjoining closes. If, after entering 

 upon his close, they proceed into another adjoining thereto, 

 they are there trespassers and an action may be maintained 

 for such trespass by the owner of the second close, even if his 



"' 27 Sol. Jour. 81. 



"" Hartford v. Brady, 114 Mass. 466; Erdman v. Gottshall, g Pa. Super. 

 Ct. 295. 



"' Cool V. Crommet, 13 Me. 250. 



