ANIMALS STRAYING PROM THE HIGHWAY. 281 



fence was insufficient and if he was also bound to fence as 

 against the owner of the first close. Being thus bound, he is 

 only bound to fence against cattle rightfully on the first 

 close." ^^^ So in an English case it is said: "If cattle of one 

 man escape into the land of another, it is no excuse that the 

 fences were out of repair, if they were trespassers in the place 

 from whence they came. If it be a close, the owner of the 

 cattle must show an interest or a right to put them there. If 

 it be a way, he must show that he was lawfully using the way ; 

 for the property is in the owner of the soil, subject to an ease- 

 ment for the benefit of the public." It was therefore held 

 that a plea that cattle, being in the highway, escaped was not 

 sufficient ; it must state that they escaped, passing in the high- 

 ^^y 136 j^ jg incumbent on the defendant in such cases to 

 show that he was using care and skill in driving his cattle.'*'' 



Where animals are not lawfully on the highway, as if they 

 are merely straying there, their owner is responsible if they 

 trespass on adjoining unfenced lands.'*^ And as no man has 

 a right to pasture his animals in the highway, except in those 

 parts where he owns soil, he is liable if they break into ad- 

 joining lands, whether fenced or not.'*® 



In accordance with the above principles it was held in an 

 English case that where an ox, belonging to the defendant, 

 while being driven by his servants through the streets of a 

 country town, entered an ironmonger's shop, adjoining the 

 street, through an open door and damaged goods — the de- 

 fendant was not liable, no negligence being proved on the 



""McDonnell v. Pittsfield & N. A. R. Co., 115 Mass. 564. And see 

 Lord V. Wormwood, 29 Me. 282. 



"' Dovaston v. Payne, 2 H. Bl. 527. "' Ficken v. Jones, 28 Cal. 618. 



'" Garrett Nuisances 164; Mills v. Stark, 4 N. H. 512. 



And they are not lawfully "going at large," as permitted by an or- 

 dinance, if they escape from the owner's enclosure into the highway 

 against his will: Tonawanda R. Co. v. Munger, s Denio (N. Y.) 255. 



'''Avery v. Maxwell, 4 N. H. 36; Stackpole v. Healy, 16 Mass. 33; Har- 

 rison V. Brown, 5 Wis. 27. 



As to pasturing on the highway, see § 77, infra. 



