GENERAL RULES AFFECTING LIABILITY, ETC. 289 



If A. and B. occupy adjoining lands forming one field and 

 A. authorizes C. to put his cattle into the enclosure, repre- 

 senting: that he is the sole owner, and. C. does this, the latter 

 is liable for the damage by his cattle going on B.'s land, 

 though he may have believed that A. had full authority to 

 give the license.!'*'^ But the owner of land, who leases it with 

 the understanding that the lessee, if he cannot keep stock out, 

 may charge for the use of the land, cannot maintain trespass , 

 against the owner of intruding cattle who arranges with the 

 lessee to use the land for the season for a certain amount ; and 

 it is immaterial whether this amount belongs to the land- 

 owner or the tenant.^®® 



A statute prohibiting the driving of animals on Indian land 

 without the consent of the tribe, does not prohibit delivery 

 under contract of sale.^®* 



Where the duty of fencing is on a railway company, the 

 defendant is not responsible to the company's tenant on ad- 

 joining land for the trespass of his cattle.^^" Where a fence 

 built by a railway company was sufficient against horses, oxen 

 and sheep but not against pigs, and the plaintifif, an employee 

 of the company, had the hand trolley on which he was return- 

 ing from work upset by pigs escaping through the fence from 

 the defendant's land, it was held that the word "cattle" in 

 the statute included pigs and that the fence was therefore in- 

 sufficient, and that, even if the defendant were negligent, the 

 plaintifif could not recover, being identified with the company 

 through whose negligence the accident had occurred.^''^ 



and that the prosecutor was the rightful possessor: Dickens v. State 

 (Tex. Cr.), 46 S. W. Rep; 246. 



"" Daniels v. Aholtz, 81 111. 440. 



""Stufflebeem v. Hickman (Cal.), 53 Pac. Rep. 438, distinguishing 

 Rogers v. Duhart, 97 Cal. 500. 



^^ Morris v. Cohn, 55 Ark. 401. 



"° Wiseman v. Booker, 3 C. P. D. 184. 



See, in general, as to fencing by a railway company, Title VII, Ch. II, 

 infra. 



™ Child V. Hearn, L. R. 9 Ex. 176. 

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