WHEN ANIMALS ARE "RUNNING AT LARGE." 297 



charge of a keeper.^"* And it is extremely doubtful whether 

 such a right can be conferred on any other by statute. "It 

 is sometimes thought that a vote of the town authorizing 

 cattle to run at large might make such a use of the highway 

 [i. e., for pasture] legal ; but as the grass and herbage in the 

 highway ordinarily belong to the abutter, at least when, as is 

 usually the case, he owns the fee to the centre of the road, 

 and althoug^h he =may pasture his own cows there under the 

 charge of a keeper, ... it is difficult to see what right a town 

 has to authorize other persons to take and carry away such 

 owner's grass, either by cutting or grazing. That would be 

 taking private property for priva;te uses, and without even the 

 show of making compensation therefor. Probably the only 

 efifect of such a municipal vote is to shield the cattle owner 

 from criminal or penal liability for violating a town by-law or 

 ordinance, but not to protect him from a civil suit by the land- 

 owner injured." ^"^ 



A city ordinance making it unlawful for the owner of cer- 

 tain domestic animals to permit them to run at large or graze 

 is violated by permitting them to graze, though without pre- 

 conceived intention. "Nor would a mere incidental and 

 trifling act of grazing be sufficient as if a horse were to snatch 

 a mouthful of grass when led along the street. There must 

 be something substantial and it must be permitted, but it is 



'"Parker v. Jones, l Allen (Mass.) 270; Robinson v. Flint & P. M. R. 

 Co., 79 Mich. 323, 327. And see Holladay v. Marsh, 3 Wend. (N. Y.) 

 142; Holden v. Shattuck, 34 Vt. 336. 



™22 Am. L. Reg. (N. S.) 240— note by E. H. Bennett. 



And see Stackpole v. Healy, 16 Mass. 33; Tonawanda R. Co. v. Mun- 

 ger, 5 Denio (N. Y.) 255, cited in § 78, infra. 



But see GrifBn v. Martin, 7 Barb. (N. Y.) 297; Hardenburgh v. Lock- 

 wood, 25 id. 9, where a statute authorizing the electors of each town to 

 determine the time and manner in which animals might run at large on 

 the highway was held constitutional. In the former case it is said: "It 

 cannot with truth be said that a by-law like the one in question takes the 

 property of one man and gives it to another, or even to the public, without 

 compensation. The owner of the soil is not deprived of the pasturage 

 any more than he is of the way. He can enjoy both in common with his 

 neighbors." 



