c. 100) was soon afterwards passed (for Scotland), declaring it unnecessary in an action against the owner of the dog to prove a previous propensity to injure sheep or cattle. An act to a similar purport was afterwards passed for England (28 and 29 Vict. c. 60)." Similar statutes have been enacted in many of our American States. See Shearman and Redfield, Negligence, §§ 205–208; Wharton, Negligence, § 923, note. In the absence of statute, however, the rule requiring an allegation of notice of the vicious propensity of the dog, as well as of other animals, prevails. See Wharton on Negligence, § 913, and many cases there cited; and see § 914 of the same work as to dogs which are kept for the defence of property. The doctrine of May v. Burdett was applied to the case of an injury caused by a vicious horse in Popplewell v. Pierce, 10 Cush. 509. It was held that the plaintiff need not allege that the injury was received through the negligence of the defendant in keeping the horse. The gist of the action," said the court, "is the keeping the animal after knowledge of its mischievous propensities." 64 As to what constitutes notice of the vicious propensity of a domestic animal, see Appleby v. Percy, Law R. 9 C. P. 647; Worth v. Gilling, Law R. 2 C. P. 1; Gladman v. Johnson, 36 Law J. C. P. 153; Applebee v. Percy, 30 Law T. N. s. 785; Arnold v. Norton, 25 Conn. 92; Kittredge v. Elliott, 16 N. H. 77; Buckley v. Leonard, 4 Denio, 500; Cockerham v. Nixon, 11 Ired. 269. (d.) Fences. Escape of Animals. By the common law of England (which is held inapplicable to the state of the country in some of our prairie States, 3 Kent's Com. 438, note 1, 12th ed.), the owner of land is bound to keep it fenced; and, if his cattle get into his neighbor's premises, he is liable for the damage done by them, whether the escape was owing to his negligence or not. Ellis v. Loftus Iron Co., Law R. 10 C. P. 10; Cox v. Burbridge, 13 Com. B. n. s. 430, 438, Williams, J.; Fletcher v. Rylands, Law R. 1 Ex. 265, 281; Lyons v. Merrick, 105 Mass. 71; Richardson v. Milburn, 11 Md. 340; Webber v. Closson, 35 Maine, 26; Myers v. Dodd, 9 Ind. 290. In Ellis v. Loftus Iron Company the defendant's horse had injured the plaintiff's mare by biting and kicking her through the fence; and it was held that this was a trespass upon the plaintiff's premises. The law was thus laid down as far back as the time of the Year-Books. See 20 Edw. 4, 11, pl. 10, referred to in Fletcher v. Rylands, supra, where in trespass with cattle the defendant pleaded that his land adjoined a place where he had common, and that his cattle strayed from the common, and defendant drove them back as soon as he could. The plea was held bad; and Brian, C. J., said: "It behooves him to use his common so that he shall do no hurt to another man; and if the land in which he has common be not inclosed, it behooves him to keep the beasts in the common and out of the land of any other." It follows that where this rule prevails the owner of cattle which are killed by a passing train of cars while straying upon a railroad track cannot recover for the loss; unless, we should add, the damage was actually caused by the misconduct or negligence of the defendants' servants. Price v. New Jersey R. Co., 3 Vroom, 229; Munger v. Tonawanda, R. Co., 4 Comst. 349; s. c. 5 Denio, domestic animals. Brown v. Hoburger, 255; and other cases cited in note 1, 3 52 Barb. 15; Leonard v. Wilkins, 9 Kent's Com. 438 (12th ed.). Johns. 233; King v. Kline, 6 Barr, 318; Woolf v. Chalker, 31 Conn. 121; Putnam v. Payne, 13 Johns. 312. But see Hinckley v. Emerson, 4 Cowen, 351, as to dogs chasing and worrying sheep. (e.) Killing Another's Animals. Detaining Strays. —It may be proper at this place, by a slight digression from the main purpose of this note, to refer to the rules of law concerning the right of a person to kill vicious animals, or to injure or detain straying beasts and fowls. It is clear that a man may have property in a dog, though the animal may not be shown to have any pecuniary value. Dodson v. Moek, 4 Dev. & B. 146; Wheatley v. Harris, 4 Sneed, 468. And the same is doubtless true of other animals kept as pets, and of wild animals which have been tamed, such as wild geese. Amory v. Flyn, 10 Johns. 102. And the consequence is, that no one has an absolute right to take and keep them while straying: ib.; or therefore to kill them: Dodson v. Moek, and Wheatley v. Harris, supra. See also Dunlap v. Snyder, 17 Barb. 561; Leutz v. Stroh, 6 Serg. & R. 34. But while there is no absolute right to kill such animals, there are circumstances when the law will justify such an act. Of course, a man may protect himself from an attack of a beast, though if he has provoked the attack, and kills the animal in defending himself, the case would probably be otherwise. This would clearly be the case if the animal were not usually ferocious and "accustomed to bite mankind." The owner would then be entitled to recover damages for the loss of the beast. A mad dog ought to be killed; so of a dog suspected (with reason) to be mad; and so of one found at large doing or attempting to do mischief, as in biting or worrying sheep, or other A ferocious, biting dog, suffered to run at large without a muzzle, is a common nuisance; and any one may kill it, whether at the time it was doing mischief or not, or whether the owner knew the nature of the dog or not. Putnam v. Payne, supra; Maxwell v. Palmerston, 21 Wend. 407; Dunlap v. Snyder, 17 Barb. 561; Brown v. Carpenter, 26 Vt. 638. A man may, however, keep a ferocious dog as a watch-dog, if properly guarded: Perry v. Phipps, 10 Ired. 259; but in Woolf v. Chalker, supra, it is said that this is allowable only under circumstances in which the keeping of concealed weapons, to prevent a felony, would be justified. (Upon this latter point there is a somewhat confused line of cases in England as to spring-guns, of which Bird v. Holbrook, 4 Bing. 628, s. c. 1 Moore & P. 607, is the leading one, that we do not propose to consider.) Nor will the mere fact that domestic animals are found trespassing upon a man's premises justify him in killing them: Matthews v. Fiestel, 2 E. D. Smith, 90; Dodson v. Moek, supra; or in detaining them upon a claim for any thing beyond a reimbursement of necessary expenses and payment of the actual injury done. Comp. Amory v. Flyn, 10 Johns. 102. And if the party detain them, he must treat them properly, and not injure them. Murgoo v. Cogswell, 1 E. D. Smith, 359. If the owner of the premises drive the animals out with undue violence, whereby they are injured, he will be liable. Amick v. O'Hara, 6 Blackf. 258, where it was held unlawful to chase a horse out of the defendant's field with a ferocious dog. Upon this subject there are some interesting provisions in the French and Roman law. It was provided by one of the laws of the rural police that a landowner who had suffered damage by straying animals had the right of seizing them, under the duty of taking them within twenty-four hours to the public pound. 1 Fournel, Du Voisinage, 447 (4th ed.). And the author cited says that this power is given not only to the owner of the land in which the damage has been done, but to every neighbor who has witnessed the trespass, because of the interest every neighbor ought to have in the welfare of another. But, M., Fournel says, the animals must not be treated cruelly; on the contrary, he who seized them should treat them as if they were his own animals. This humane and just requirement was taken from the Aquilian law. "Sic illud expellere debet, quomodo si suum deprehendisset." Dig. lib. 9, tit. 2, 39. So, too, the land-owner was required to take care, in driving out the animals, to chase them gently and with moderation, and without wounding or hurting them; and if he pursued them too violently, so that the animals, while going in a narrow place, should fall and get injured, the party was liable to the owner of the animals. And this was also founded upon the rule of the Roman law. Dig. lib. 9, tit. 2, 53. Our law, as we have seen, is similar upon both of these points. If the animals taken trespassing are of the flying kind (fuyardes), as geese, fowls, and ducks, the land-owner, after notifying the owner of the animals, may kill them upon the second offence, because such animals are not easily caught, and their capture would not be worth the trouble or expense of litigation. But, adds Fournel, he ought to leave them upon the ground in order to show that he has not killed them out of covetousness; and likewise, if there were many of them, he ought only to kill a few. (In our law the first qualification would not, of course, be required, for any (proper) evidence would be admissible to show the circumstances under which the fowls had been killed). The fowls, further, can only be killed on the spot, at the moment of the depredation. The damages in all these cases are very exactly regulated; and M. Fournel gives a table of them. See 1 Fournel, Du Voisinage, § 105, pp. 444-459 (4th ed.). Bringing Dangerous Things upon a Man's Land. The principle of May v. Burdett has in England been extended still farther, and held to cover all cases where one for his own purposes brings upon his land, and collects and keeps there, any thing likely to do mischief if it escapes; such a person is prima facie answerable for all the damage which is the natural consequence of an escape. Rylands v. Fletcher, Law R. 3 H. L. 330; s. c. Law R. 1 Ex. 265, reversing s. c. 3 Hurl. & C. 774; 34 Law J. Ex. 177. In this case the defendants had constructed a reservoir on land separated from the plaintiff's colliery by intervening land. Mines under the site of the reservoir, and under part of the intervening land, had been formerly worked; and the plaintiff had, by workings lawfully made in his own colliery and in the intervening land, opened an underground communication may accrue, or answer for the natural between his own colliery and the old and anticipated consequences. And, workings under the reservoir. It was not upon authority, this, we think, is estabknown to the defendants, or to any per- lished to be the law, whether the things son employed by them in the construc- so brought be beasts, or water, or filth, tion of the reservoir, that such commu- or stenches." The authorities are then nication existed, or that there were any reviewed in support of this position from old workings under the site of the res- the Year-Books down; embracing cases ervoir; and the defendants were not of injuries by escaping cattle, by mispersonally guilty of any negligence. chievous animals, and by filth. YearThe reservoir, in fact, was constructed Book, 20 Edw. 4, 11, pl. 10; Tenant over five old shafts, leading down to v. Goldwin, 2 Ld. Raym. 1089; s. c. the workings; and, when it was filled, 1 Salk. 360; 6 Mod. 311; Cox v. Burthe water burst down these shafts and bridge, 13 Com. B. N. s. 438; May v. flowed by the underground communica- Burdett. See also, as to injury from tion into the plaintiff's mines. It was filthy water, Ball v. Nye, 99 Mass. 582; held, in the Exchequer Chamber, that Carstairs v. Taylor, infra. the defendants were liable for the damage so caused; and this judgment was affirmed in the House of Lords. In delivering the judgment of the Exchequer Chamber, Mr. Justice Blackburn said: "The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth of his neighbor's privý, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his bringing it there no mischief could have accrued; and it seems but just that he should at his peril keep it there, so that no mischief The principle of Rylands v. Fletcher was again enforced by the Court of Exchequer in Smith v. Fletcher, Law R. 7 Ex. 305, a case growing out of injury from the same premises. The parties in this case had mines adjoining and communicating with each other. In the surface of the defendants' land were certain hollows and openings, partly caused by and partly made to facilitate the defendants' workings. Across the surface of their land ran a watercourse, which, in 1865, had been diverted into a new and larger channel. In November, 1871, the banks of the new watercourse (which were sufficient for all ordinary occasions) burst, in consequence of exceptionally heavy rains, and the water escaped into and accumulated in the hollows and openings, where the rains had already caused an unusual amount of water to collect, and thence by fissures and cracks water had passed into the defendants', and so into the plaintiff's mines. It appeared that, if the land had been in its natural condition, the water would have spread itself over the surface, and have done no injury. The defendants, though not 1 guilty of any negligence in the management of their mine, were held liable for the damage sustained. The case was considered as not distinguishable from Rylands. Fletcher. "The defendants here," said the court, "did not indeed make a reservoir. But suppose they had made the hollow, originally excavated for other purposes, into a reservoir, or fish-pond, or ornamental water, would the fact that it was originally for another purpose than holding water have made any difference? That cannot be. But it is said that they did not bring the water there, as in Fletcher v. Rylands. Nor did they in one sense; but in another they did. They so dealt with the soil that, if a flood came, the water, instead of spreading of itself over the surface and getting away to the proper watercourses innocuously, collected and stopped in the hollow, with no outlet but the fissures and cracks." Both of the above cases were distinguished from Smith v. Kenrick, 7 Com. B. 515. There, in the course of the ordinary working of the defendants' mine, water percolating in the strata had flowed from the defendants' mine into that of the plaintiff; and no negligence being proved against the defendants, it was held that they were not liable for the damage caused. The damage sustained by the plaintiff in Smith v. Kenrick, said Lord Cranworth (Law R. 3 H. L. 338), was occasioned by the natural flow or percolation of water from the upper mine into the lower; but in the Fletcher cases the accumulation of water, said Bramwell, B. (Law R. 7 Ex. 311), was not in the natural use of the land. "If," said the court in Smith v. Fletcher, “the similitude to responsibility for a dangerous animal is looked for in this case, it will be found the defendants did not indeed keep, but they created one for their own purposes, and let it go loose. It is as though they had bred a savage animal and turned it loose on the world." What seems to be the chief distinction, if there was any at all, between this case and Smith v. Kenrick was then noticed; namely, the fact that the defendants had diverted the brook, and that the water escaped from the artificial channel which they had made into the hollow and thence into the mine. But the defendant was not satisfied with the judgment, and carried the case up to the Exchequer Chamber; and there the decision of the lower court was reversed, and a new trial granted. The judges, however, gave a very short and guarded opinion (by Coleridge, C. J.); saying that they did not think the case governed in every conceivable aspect by Rylands v. Fletcher, and that, had evidence been received (which was offered) to show that every reasonable precaution had been taken to guard against ordinary emergencies, there might have been questions for the consideration of the jury. A distinction was also suggested between water coming from the new diversion and that which came from the natural overflow; and, finally, they thought it desirable that the opinion of the jury should be taken as to whether the acts of the defendants were done in the ordinary, reasonable, and proper mode of working the mine. Smith v. Fletcher, Law R. 9 Ex. 64. In 1863, a few years before the above cases were decided, the same questions arose in the Common Pleas in Baird v. Williamson, 15 Com. B. N. s. 376. (The Fletcher cases are given first for the sake of connection with the previous part of the note; those cases be |