438 
Boundary Fences. 
was much out of repair, with several large gaps in it. The 
defendant was tenant and occupier of Poor's Piece, which he used 
for grazing purposes. The plaintiffs case was that on various 
occasions the defendant's sheep, occasionally from twenty to thirty 
at a time, got into Fisher's Piece through the gaps in the north wall 
and did damage, for which he claimed 10^. It was proved that the 
defendant's sheep from time to time during the summer of 1888 
made incursions into Fisher's Piece, and that they did some damage, 
and the question for the Court was whether the plaintiff was entitled 
to recover under the circumstances of the case, the wall being admit- 
tedly his, and he not having kept it in repair. 
At the trial it was contended on behalf of the plaintiff that 
although the plaintiff or his landlord was undoubtedly the owner of 
the wall, and that the plaintiff had not repaired it himself or allowed 
the defendant to do so, he was nevertheless entitled to recover damages 
from the defendant for the trespass committed by his sheep ; and 
that whether the trespass was or was not in any degree attributable 
to his own negligence was for the purposes of the action wholly 
immaterial. For the defendant it was urged, that if there had been 
no gaps or weak places in the wall, the defendant's sheep would not 
have got through and done the damage ; that it was the duty of the 
plaintiff, as between himself and the defendant, to keep his own wall 
in repair ; and that, as he would neither repair it himself nor allow 
the defendant to do so, he could not sue the defendant for the conse- 
quences of a trespass which he himself might have prevented by the 
exercise of a little reasonable care. 
"We have here," said the learned judge, "the question distinctly 
raised, On whom does the law cast the obligation of preventing cattle 
or sheep from straying 1 Is the owner of the cattle or sheep bound 
to keep them within the limits of his own land, or is the owner of 
the adjoining land bound to protect himself against the possible 
incursions of his neighbour's cattle ? There is, I need hardly observe, 
no statutory obligation in this case, such as is imposed on railway 
companies, who are bound by statute to make and maintain suffi- 
cient fences, not merely for the purpose of separating the land taken 
for the use of the railway from the adjoining lands not taken, but 
also for protecting such lands from trespass or the cattle of the 
owners or occupiers thereof from straying thereout by reason of the 
railway ; nor is this the case of a man bringing something noxious 
or dangerous on to his land, or, as Lord Cairns put it, ' using his 
land in a non-natural manner' ; the defendant here is using his 
land in a proper, legitimate, and usual manner. The law is very 
ancient and well settled ; it is expressed in the old maxim, ' Sic 
utere tuo ut alienum non laxlas,' and almost the earliest, if not 
the earliest cases, in which this maxim was applied, were cases" of 
cattle trespass. Lord Hale states that where one keeps a beast, 
knowing that its nature or habits are such that the natural con- 
sequence of his being loose is that he will harm men, the owner 
• must at his peril keep him safe from doing hurt ' ; for, though he 
