288 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



in consequence of the driver's treatment." ^^^ So, the owner 

 of a horse who permitted it to go unattended on a sidewalk 

 is hable, without proof of scienter, for injuries inflicted by its 

 biting a pedestrian.^®' 



An injury to a colt lawfully in the pasture of a third person 

 by the defendant's dog, which he had unlawfully taken there, 

 makes the latter liable without regard to any knowledge of 

 the dog's vicious disposition.'*^ But it seems, as has been 

 said above, that in the case of a dog some assent, express or 

 implied, to the trespass must be shown.'** 



In places where the common-law rule as to fencing out ani- 

 mals does not prevail, it is nevertheless a trespass to drive 

 animals on another's land intentionally against his will or 

 without his consent, whether the lands are sufficiently fenced 

 or not.'** So, one who opens a division fence, though on 

 his own land, at a time and under circumstances that would 

 naturally cause his stock to go on the adjacent land and re- 

 main there, is as much a trespasser as if he drove the stock 

 and kept them there.'*^ But where A. rented from B. a part 

 of a field and turned his horses on, and there was no fence be- 

 tween his part and the rest, and no stipulation in the lease, and 

 the crop had been gathered, it was held that he was not guilty 

 of knowingly causing his horses to go on B.'s land without 

 the latter's consent.'** 



"° Hardiman v. Wholley (Mass.), 52 N. E. Rep. 518. And see § 93, 

 infra. 



"' Stern v. Hoffman Brewing Co., 56 N. Y. Suppt. 188. 



"' Green v. Doyle, 21 III. App. 205. 



So, where the injury was caused by an unattended horse: Barnes v. 

 Chapin, 4 Allen (Mass.) 444. Cf. Meegan v. McKay, i Okla. 59. 



•" See § 74, supra. 



""' Lazarus v. Phelps, 152 U. S. 81; Merritt v. Hill, 104 Cal. 184; Bedden 

 V. Clark, 76 111. 338; Harrison v. Adamson, 76 la. 337; Erbes v. Wehmayer, 

 69 id. 8s; Powers v. Kindt, 13 Kan. 74; Delaney v. Errickson, 11 Neb. 533. 



"" Claunch v. Osborn (Tex. Civ. App.), 23 S. W. Rep. 937. 



"" Coggins V. State, 12 Tex. App. 109. 



On a prosecution under the code for knowingly causing cattle to go 

 within enclosed land of another without the owner's consent, it is pertinent 

 to show that the defendant had no right, claim or interest in the pasture 



