348 



THE LIABILITIES OF PARTIES HUNTING, ETC. 



Maintenance 

 of fences. 



Oate of a field 

 left open. 



Gate of a 

 railway 

 crossing left 

 open where 

 there is a 

 statutory 

 obligation. 



of its master, it is not a trespass for which an action will 

 lie (u). 



The obligation to make and maintain fences, both at 

 common law and by the Railway Clauses Consolidation 

 Act (x), is only as against the owners or occupiers of the 

 adjoining close. If the company neglect to fence, neither 

 they nor their servants can recover for injury caused by 

 animals straying on their land (y), nor can the tenants of 

 the land (z) . And where the plaintiff's sheep, trespassing 

 on A.'s close, strayed upon the defendant's railway which 

 adjoined, through a defect of fences which the defendants 

 were bound as against A. to make and maintain, and was 

 killed ; it was held by the Court of Common Pleas that the 

 plaintiff could not recover (a). 



But a person using the lands of an adjoining owner by 

 his permission is in the same position as he is {b). 



A person whose field adjoins a highway may leave his 

 field open and permit cattle to pass over it. He cannot 

 distrain them if he has suflfered them to come there ; but he 

 commits no breach of duty by leaving the field open (c). 



The following important case decided that where a rail- 

 way company is by statute bound absolutely to keep the 

 gates of its level crossings closed, it is liable for damage 

 occasioned to a trespasser in consequence of one of these 

 gates having been left open. It appeared that the Y. Rail- 

 way passed over a highway on a level, and that there were 

 gates across each end of the road so crossed by the line of 

 riiilway. Some horses belonging to the plaintiff leaped 

 over the fence of a field, in which they had been placed, 

 into a second field, and from that over a broken gate into a 

 third field, all three being the plaintiff's fields ; they then 

 strayed through an open gate of the third field into the high- 

 way crossed by the railway on a level. One of the gates 

 across the end of the road where it was crossed by the line 

 of railway having been left open, the horses strayed through 



(«) See per Parke, J., Browii v. 

 Giles, 1 C. & P. 119; Bead v. 

 Edwareh, 11 L. T. 311. 



(x) 8 & 9 Vict. c. 20, s. 68. And 

 see Buxton v. Xurtli Eastern Itail. 

 Cn., L. R., 3 Q. B. 549; 37 L. J., 

 a. B. 2.58 ; 18 L. T., X. S. 795 ; 16 

 W. R. 1194. 



(!/) ChM V. Jlearn, L. R., 9 Ex. 

 176; 43 L. J., Ex. 100; 22 W. R. 

 864. 



ii) Wiseman v. Booker, L. R., 3 



C. P. D. 184; 38 L. T.,N. S. 392; 

 26 W. R. 634. 



(rt) Eieketts v. East and West 

 India Docks and Bniningham June- 

 Hon Rail. Co., 21 L. J., C. P. 201. 



(h) Dawson v. Jlid/and Rail. Co. 

 L. R., 8 Ex. 8 ; 42 L. J., Ex. 49 ; 

 21 W. R. 56, 



(f) See per Patteson, J., Fatecett 

 V. York and Xorth Midland Rail. 

 Co., 16 Q. B. 617 : 20 L. J., Q. B. 

 222. 



