Savage Ch. J.
Judgment reversed.
The nucleus, of all the authorities in relation to this subject, is the ancient maxim, that no man shall take advantage of his own wrong or negligence, in his prosecution or defence, against another. (12 John. 434.) A kindred principle, on which this doctrine maybe placed, is, that one is bound to use any thing that is his, so as not to hurt another by such user. (6 Mod. 314.)
To apply these maxims, we must first inquire, how the common law stood in the matter ? and, secondly, how far, and in what respect, it has been, or maybe, departed from, by statute, agreement, or prescription?
First. At common law, every man was bound to keep his beasts within his own close, under the penalty of answering, by distress or action, for all injury arising from their being abroad. (Per Parsons, C. J. 6 Mass. Rep. 94. F.N.B. 128. 22 H. 6.9. Br. Trespass, 345,439. 16 H. 7.14. 13 Vin. Abr. Fences, A. Dyer, 372, pl. 10. 20 Edw. 4.10. 6 Mod. 314. And vid. 1 Taunt. Rep. 529. 19 John. 385. 3 Bl. Com. 209. Selw. N. P. 1224.) And this, doubtless, is still the law, in relation to such animals, as cannot be restrained by those enclosures which farmers of experience would pronounce proper and sufficient fences.
1. The first exception to the common law, arises from statute, (sess. 36, s. 35, s. 17, 2 R. L. 133,) relative to division or partition fences. The neglect to build or repair, as required by that statute, renders the party liable, in damages, for injuries arising from such neglect; and this, not only by the express declaration of the statute, but at the common law.
Under this statute, before the party can be made liable for defect of his partition fence, the proportion which he is bound to build or repair, ought to be either agreed upon, or assigned, pursuant to the statute. Till this, the [80]*80obligation is undefined. The respective occupiers of two closes adjoining, are bound to make and maintain, each one half of the partition fence; but, unless the fence, or the line on which it is to be made, has been divided, by an agreement between the parties, or assigned, pursuant to the statute, or by-prescription, neither party is obliged to maintain any part of the' partition! fence. (Per Parsons, C. J. 6 Mass. Rep. 100.) And, indeed, if there exist in such case, a joint obligation to make the fence, no legal effect would flow from it; for then, each party would be bound, equally, to make every part, and if the fence be defective, each party would be chargeable with the deficiency; and, upon the escape of cattle from either close to the other, through a defect in any part of the fence, the owner of the cattle could not allege the escape to be from the deficiency of the other’s fence. (Id. 101, and vid. 19 John. 385.) Thus, the common law doctrine applies till the proportions are ascertained.
Wherever a dispute arises, between the parties, as to the proportion of fence to be maintained by each, it may be settled by the fence viewers, even Where there has-been an agreement on the subject. (4 John. Rep. 414-15.) and such decision may be made by parol,and proved, like any other fact, resting in the memory of witnesses, (id. 415-16;) and it is finally to be determinedby the balance of testimony, (id.) On being ascertained, under the statute, the assignment,pursuant thereto, imposes the same duty as would result from a prescription; and, instead of a curia claudenda, one tenant may, after proper notice and due time, prescribed by the same section of the statute above quoted, make and repair the fence belonging to the other, on his neglect, and recover the expense of him, in an action for work and labour. (9 John. 136,) Section 18 of the same statute, (2 R. L. 133,) provides a still more speedy remedy for rebuilding_such partition fences, enclosing meadows or lowland, as are liable to be carried away by the floods and high tides!
By statute, (Sess, 36, ch. 35, s. 12,2 R. L. 131,) town meetings may regulate partition and circular fences, and determine the times and manner of using their common lands, meadows and other commons, and the times, places and manner, of permitting or preventing cattle, &c. to go at large.
The subjects of this statute, are either partition or circular fences. The towns have no power to interfere with the interior regulations of a man’s farm, either in keeping his cattle or building hi? fences. (12 John. 433.) They can impose no duties, to maintain fences, beyond those which tenants are bound to maintain, by common or statute law ; though they may, by statute, (2 R. L. 131, s. 12,) determine the sufficiency of these required by [81]*81law to be built. (12 John. Rep. 433. 15 John. R. 220.) These circular fences are matters of local concern, and are noticed, ior the first time, that I can discover, in 1 Smith Sc Livingston’s edition of the laws of this state, 426, by the recital in a colonial act there, passed in 1750. It recites, that the freeholders, &c. in some cities and towns, &c. are accustomed to make circular fences for the surrounding of their lands, See. by which means great quantities of their lands, &c. are surrounded by a common enclosure, securing those who do not contribute towards making it; and then provides for compelling contribution, in a summary manner, which has, by subsequent statutes,been left to town regulation.
When our ancestors first settled in this country, they found it uncultivated ; and when closes were made by the settlement and cultivation of the lands, there could be no prescription to fence ; and, therefore, the common law, authorising the writ of curia claudenda, being inapplicable to the state of the colony, was never introduced. (Vid. 6 Mass. Rep. 94, 5.) Provisions respecting fences were early made by the legislature of the colony of New-York, which have been continued since the revolution, nearly in their colonial shape. These statutes are the foundation of all the obligations imposed on the citizens by law, to make and repair fences. (Id. 95. Vid. 1 Laws N. Y. by Smith & Livingston, 426, 427. Do. by Van Schaick, 3,289-90. 2 do. by Jones & Varick, 337,8,9. 2 do. by Greeneleaf, 170, 2,3. 1 do. by Kent & Radcliff, 331,2,3. 2 do. by Woodworth & Van Ness, 131, 3, 4.) Their great object is to establish the rights and obligations of tenants of adjoining closes, respecting the making and mainT laining partition fences. These, where tl}eir proportion of the partition fence is assigned to them, or to those under whom they claim, by the feneft [82]*82viewers, pursuant to the statute, have no right to a distress, or action, for any injury arising from the absence or defect of. the fence, which they are thus hound to build or repair, provided such injury arise from the intrusion of cattle, which are rightfully on the adjoining land. The rights of persons, not having any interest in either of the adjoining closes, remain unaffected by the statute, and are to he defined and protected by the common law. (6 Mass. Rep. 97-8.) Wlien the proportion has been ascertained, instead of averring, in pleading, that a tenant has used, by prescription, to malee and repair, in the technical form, it is sufficient to allege, that he is obliged, by law, to make and repair, and give the assignment in evidence. (Id. 96.)
2. An agreement, settling the proportions of the partition fence, would, doubtless, have the same effect as an assignment under the statute; though, in order to be effectual, it must he made between the parties to the suit, or those under whom they claim. (4 John. Rep. 414-15. & Mass. Rep. 97.) Ch. Justice Parsons, in speaking of these agreements, says, that, “When there has been no assignment, but only an agreement executed by the tenants of the adjoining closes, it may he a question whether such agreement shall have the force of an assignment, and if not, whether the tenant, whose cattle have escaped, can plead such agreement in bar of an action of trespass, or must have his remedy by an action on the agreement. It is true, that a curia claudenda does not lie, hut against a tenant, who is obliged by prescription to repair-. And, by analogy, an agreement between the tenants, making a division of the fence, each one mutually undertaking to repair Ms part, would not authorise one tenant, who had made or repaired the fence of the other, on his refusal, to recover of him the expense. But there appears to be no good reason, after an actual division by such agreement, if the cattle of one tenant escape into the close of the other tenant, through the defect of the fence, which the other had agreed to make and repair, why the-Owner of the cattle might not aver, that the party com[83]*83plaining had bound himself by his agreement, to make and maintain the fence, and that tire cattle escaped through his default; for if he had agreed to make and repair the fence, he ought, by law, to fulfil his agreement. Prescription to fence, is allowed at the common law, as resulting from an original grant or agreement, the evidence of which is lost by the lapse of time; and it is reasonable that the agreement produced, should be as effectual as a presumption, that it once existed, but is lost, arising from ancient usage.” (6 Mass. Rep. 96,7.) And it has been determined in. this state, that where the party has, for several years, kept up a certain part of the division fence as his own, this is, prima facie, enough to shew that it belongs to him. (15 John. 220, 1.)
3. Prescription may form another exception to the common law. The country has now been settled long enough to allow of the time necessary to prove a prescription, (vid. 2 John. Rep. 357 ;) and ancient assignments • of fence viewers, made under the late colonial laws, and also ancient agree. ments made by the parties, may have once existed,.and be now lost by the lapse of time. (6 Mass. Rep. 97.)
It seems, then, that the owner of the cattle may aver, 1. That the party complaining, ought, bylaw, to make and maintain his fence, in which case he may prove the assignment or apportionment by the fence viewers; or, 2. That he is bound by agreement, to make and repair the fence, setting out the agreement in pleading, and proving it accordingly; or, 3. That he was bound by prescription, when he should regularly plead the prescription, and may prove it by ancient usage. (Id. 97, and vid. The opinion of Popham, J. in Nowell v. Smith, against the other Judges, Cro. Eliz. 709.)
These statutory provisions oblige a tenant to fence against such cattle only as are rightfully on the adjoining land. Beyond this, all rights remain as at common law; at which, says Ch. Justice Parsons, “ when a man was obliged by prescription to fence his close, he was not obliged to fence against [84]*84any cattl.0, hut those which were rightfully in the adjoining close, (10 E, 4. 7, 8. 22 E. 4. Fits. Air. Curia Claudenda, 2. Jenk. 4 Cent. ca. 5.) But the owner of the cattle may avail himself of the insufficiency of the fence of the close injured, if he has an interest in the adjoining close, to authorise him to put his cattle there, as a right of way, an highway, a license, a lease, or a right of common. (Fits. N. B. 298, note.)
“ Against this position, the plaintiff has cited Fits. Abr. 298, note 6, where it is said that if A be bound to fence against B, and B against C, and beasts escape out of the land of C, into the land of B, and thence into the land of A, A shall not maintain trespass against C. But if A be bound to fence against B, and the beasts of B escape into the lands of A, and thence into the lands of D, a stranger, D may maintain trespass against B, who shall he left to his curia claudenda against A. By calling D a stranger, I suppose is meant, that neither A nor f) is honnd to fence against each other. For this distinction is cited, 10 E. 4. 7, and 36 H. 6. Fitz. Abr. Cur. Claud. Bar. 168.
“ As this distinction is not supported, but opposed by other cases, we have looked into the authorities cited. The 10 E. 4. 7, clearly proves that D may maintain his action. It is thus laid down by Choke, justice, “ If I have “ a close between the close of A, on one side, and the close of B, on the oth-- “ er side, which I ought to fence-; and through defect of fence, A’s cattle “ escape into my close, I can have no action, for it is through my own de- £-‘ fault. But if they pass through my close into the close of B, he may £t have an action against A, who shall be put to his writ de curia claudenda against me.”—The case of, 36 Ft. 6. is not reported in the year books, hut there is a short statement of it in Fitz. Air. Bar. 168. And I believe the distinction arose from a mistake of the case. It is thus: “ Note, that it was 'f‘ adjudged by the court, if my beasts go into the close of another [de autre]¡ [85]*85•“ which is adjoining to my close, for the defect of the close of the other, [de I’aulrc] and further go into another [autr¿\ close of the other, “ [de Vaulre] that I shall not be punished, because I do not retake.them, K and put them again into my close, until reparation be made of the other ® close, because they would go again,” &c. Now, by mistaking the third close for a close of a third person, who, because of the defect of his own fence, could maintain no action against the owner of the cattle, the distinction arose, but it is not well founded. That I have given the true translation, appears from Jenk. 4 Cent ca. 5. The rule, as there laid down, is, if A has Green acre, adjoining to his own close While acre, which adjoins to B’s close Black acre, which A ought to fence against: If B’s cattle go from his Bl.ckocre, to A’s White acre, and thence to A’s Green ac.e, this is no trespass, because A did not fence his While acre against B’s Black acre. This seems to be the same case of 36 H. 6. stated in Fitz. Bar. 168.
“We therefore consider it settled at the common law, that the tenant of any close is not obliged to fence, but against cattle which are rightfully on the adjoining land. And accordingly, in the entries, where defect of inclosure is pleaded, the party pleading it claims some right or interest in the adjoining close, whence the escape was made, or justifies under those who have such right or interest. (Rast. Ent. 620, b. 622. 6 Inst. Cler. 677, 680, and the entries thee cited.)"
It was upon these principles that Rust v. Low & Stanwood, (6 Mass. Rep. 90,) was determined. This case settles directly the doctrine before advanced, that one is not bound to fence, except against such cattle only as are lawfully in the adjoining close ; and it also decides that those cattle cannot be said to be lawfully there,which have broken in, through the defect or absence íjf a fence, which the owner of a clpse adjoining, in another place, is bound [86]*86to build and repair. In that case, the defendants, as bailiffs of Trask, made cognizance of taking the plaintiff’s cattle, damage feasant, in Trash's■ close. The plaintiff pleaded that he was seized of a close, called Biscay Island, which was enclosed by a fence; that to his close was adjoined Trash's close, the locus in quo, Bigg's close, and also Low's close; that Rigg's close was also adjoining upon Trask's close; and that Low's close was adjoining to Rigg’s close, thus:
That Hie partition fence, between the plaintiff’s close and the locus in quo, was undivided, and that he and Trask were jointly and equally bound, by law, to make and maintain the same ; and the same as to the partition fence between the plaintiff and Low, who were jointly, &c. bound, by law, to make and maintain the same. That the same partition fences were, in all parts, not legal and sufficient; that the plaintiff put the cattle in his own close, to depasture, whence they escaped into Low's close, through the insufficiency of the partition fence ; thence into Riggs' close, for want of any partition fence between his and Low's closes ; and thence into the locus in quo, because there was no partition fence between Riggs and Trask. On demurrer, judgment was given for the defendants. And the Court took the ground, that, had the cattle escaped directly from the plaintiff’s into [87]*87Trask’s close, he, being as much hound to repair as Trask, could not allege the insufficiency of the fence, against tire latter ; nor could he allege the deficiency of the fence, between him and Low, the place where the cattle escaped, he and Loto being equally bound to repair their partition fence ; and that, in fine, it was immaterial whether the cattle escaped through Low’s default, or not. Low and Riggs, for aught that appeared, were not bound to make a partition fence, between them, and Low was obliged, at his peril, if the cattle were rightfully there, to prevent their escape into Riggs’ close. The cattle were, by wrong, on Riggs' close, being trespassers, by escaping from Low's close, and Trask was not bound to fence against them, because Rust had no right to put his cattle there. And, indeed, that if the cattle had escaped through the defect of Low’s fence, the plaintiff could not maintain replevin against the bailiffs of Trask, but must bring case against Low. (Vid. Cro. Jac. 665, Holbeck v. Warner. 1 Salk. 335, Star v. Rookesby.)
Cattle, in the highway, are spoken of, by Ch. J. Parsons, as being in a place against which the tenant is obliged to fence, because such cattle are lawfully there; and he cites Wits. N.B. 298, note, to prove his position. But this should be understood with its proper qualifications. The note referred to quotes three authorities from the year hooks, viz : 15 H. 7. 17 ; 22 Ed. 4. 8, 49, and 10 Ed. 4. 8, as proving this, and this only, that if beasts escape, in view of the owner, by default of enclosure, as out of a highway, &c. fresh suit may be shewn in justification; but, if it docs not appear they were in view of the owner, fresh suit shall not be pleaded in bar, except the plaintiff alleges notice. These cases, evidently, suppose the owner travelling with his beasts, or, at least, that they are turned into the road merely to travel from one point to another, without his presence : but the owner has no more right to turn his beasts into the highway, or suffer them to run there, for the purposes of grazing, than he has to turn them into his neighbour’s cornfield. And this is also evident, from a pleading in Herne, 828. Indeed, [88]*88this point is now established, both in Massachusetts and in this state. (l6 Mass. Rep. 33. 19 John. 385, and vid. 2 H. Bl. 527, S. P.) And if cattle, so on the highway, for the purposes of grazing, escape into the adjoining close, the owner of the cattle cannot avail himself of the insufficiency of the fences, in excuse of the trespass, (id. ibid.) for the publick have no right in a highway, except to pass and repass thereon. (1 Burr. 143. 2 Sir. 1004. 1 Wils. 107. 6 East, 154. 2 John. Rep. 357, 363. 6 Mass. Rep. 454. 15 John. 453. 13 Mass. Rep. 256. 16 id. 33.)
Have towns, or even the legislature, the power to interfere with common law rights, by authorizing cattle, &c. to run at large in the highway ? The question has never arisen in our Courts, though somq of our authorities look like taking it for granted. (12 John. 433. 19 id. 385.) And many towns, in practice, assume to exercise this right. Without examining the constitutional right of the legislature, to thus take the property of one man and give it to another, I imagine it will be found that no such power was ever intended to be given, by any act of the legislature of this state. The only existing statute, is the one before cited, (2 R. L. 131, s. 12,) which gives towns the power to direct the use and management of their common lands, and the times, &c. of permitting or preventing cattle, horses, sheep, swine, &c. to go at large. Now they have a much stronger statute in Massachusetts, which has been heldnot to have this effect. Their colonial acts, like ours, began with mentioning commons, spoke of cattle, &c. going at' large, on the commons; others, like our statute, of their going at large, gen~ erally, without confining it to commons ; and one act, passed there, regulated the manner in which horses might go at large, on the commons or ways of any town; and towns are authorized, in that state, to grant liberty for horses to go at large, and unfettered; and so in relation to other cattle. Yet, in Stackpole et al. v. Healy, (16 Mass. Rep. 33,) the Supreme Court of that state held, unanimously, that these expressions might all he satisfied, [89]*89by referring to a running at large in ike common lands of towns, and did noi ‘extend to highways. They reason thus : “ Did the legislature mean to touch rights protected by the common law ? I may ask another question : could they do so, if they were disposed, (which is a case never to be supposed) without making compensation to the owner ? Take the case of a fruit tree, standing in the road, but in a situation to afford a convenient shade to the traveller; an ornament, but not a nuisance, to the way; and yielding an annual profit to the owner of the soil. Now, the legislature might, if they thought it expedient, provide, by law, that, for the future, the soil of all highways, that should b.e laid out, should be vested in the publick $ and compensate the owner accordingly. But-what constitutional right Would they have to divest the owners of the soil of rights remaining, in res* pect to ways heretofore laid out?” (Id. 36-7.) Again: “ The pasturage never made any part of the inducement or reason for laying out highways.” {Id. 37, and vid. the book last quoted, 35-6, for a history of the statutes of Massachusetts, on. this subject.)