The opinion of the court was delivered by
Peck, J.
This case was argued at the last term of this court upon demurrer to the defendant’s special pleas. Numerous special causes are assigned in the demurrer, but such only need be noticed as are relied on in argument.
The first question is whether the word close, used in the pleas, is such a description of the premises in which the cattle were taken damage feasant, as brings the case within the statute giving the right of impounding, that is, whether the word close is equivalent to the word enclosure used in the statute. The right to impound depends upon the statute, and the plea must allege such facts as bring the case within it. The statutes on the subject of impounding cattle damage feasant, have been and should be construed in connection with the statutes in reference to fences. The act of 1797 Slade’s St., p. 450, § 5, provided, “that it shall and may be lawful for any person to impound any swine, neat cattle, horses, sheep or other creatures that shall be found damage feasant, or doing damage in his [331]*331enclosure.” Under this statute it was held in Mooney v. Maynard, 1 Yt. 417, that the right to impound cattle damage feasant did not exist unless the locus in quo was enclosed by a legal fence, except ®uch fences as the owner or keeper of the cattle, or the adjoining proprietor, was bound to keep in repair. This case in effect decides that enclosure in the statute means land enclosed by a legal fence, except such part of the fence as the owner or keeper of the cattle, or the adjoining proprietor, is bound to repair. The Revised Statutes of 1839 has substantially the same provisions in relatiou to fences as were in force at the time of the decision of Mooney v. Maynard, except a provision that excuses the land owner, .(so far as relates to this question,) from fencing on the highway. Rev. St. p. 412, § 4, provides that, “.any person may impound any beast found in his enclosure doing damage” — thus using the same term to designate the locus in quo that had been used in the act of 1797, and defined in Mooney v. Maynard. It also enacts in substance the decision in Mooney v. Maynard, with a slight modification .corresponding with the alteration of the law as to fence .upon the highway. It is in section 16, page 519, which provides that, no person shall have a right to impound any beast taken doing damage, unless the fence to the enclosure, in which such beast was taken, shall he legal and sufficient, except fences adjoining .the highway, and fences that ■ the owner of such beast is required by law to make and repair. The same provisions are in the Compiled Statutes." This shows clearly that the intention was that the term enclosure in section 4 should have the same limited construction that had been given to it under the statute of 1797. The word enclosure therefore imports, land enclosed with something more than the imaginary boundary line, that there should be some visible or tangible obstruction, such as a fence, hedge, ditch or something equivalent, for the protection of the premises against .encroachment by cattle. Under this statute it is evident the term close, used in the plea, is too comprehensive, it embraces land owned by the party or of which he is in the rightful possession, although enclosed only by the imaginary boundary line which defines its territorial limits. The plea therefore under this statute would be insufficient.
[332]*332But the act of 1853 regulating the subject of fences, in terms repeals section 16 of the Revised Statutes, above mentioned, and that section is not contained in the General Statutes under which the question in this case arises. It is insisted on the part of the defendant that however it might have been under the former law, that since the repeal of section 16 of the Revised Statutes, and under the present law on the subject of fences, the rule is different; that under the former statutes the owner or occupant of land was bound to fence his neighbors cattle out, but that under the present law's the owner or keeper of cattle is bound to fence them in, and that if he suffers them to stray off his own land on to the land of others, it is a trespass, and the cattle may be lawfully impounded. This is true so far as relates to occupied land, except as to division fences. If under the General Statutes a party has a right to impound cattle taken damage feasant on his land whether it is occupied land, or unoccupied, wild and common, and without reference to any duty on his part to fence the land, then it is immaterial whether the term enclosure or close is used in the plea, as either would be sufficient. The question is, does the right to impound exist to this extent under the present statutes. The provision giving this right is, “any person may impound any beast found in his enclosure doing damage.” (G. S., p. 617, § 4.) The same language is used as that in the previous statutes. Had the legislature intended to extend the right to impound in all eases, whether the locus in quo was occupied or unoccupied, fenced or unfenced, the term enclosure probably would have been omitted and a moi'e comprehensive term been substituted, some term that had not already received the limited construction that had been put upon that word in the former statutes. Section 1 of chapter 102, General Statutes, page 625, has a bearing on the question. After providing what description of fences “shall be deemed legal and sufficient,” it proceeds, “except fences on the sides of highways, which the owners of lands are not bound to build and sustain, and all occupied land bordering upon highways shall be deemed to be the enclosure of the owner or occupant;” thus indicating that only occupied land is deemed an enclosure. There is no apparent reason why the word “ enclosure” in section 4 of chapter 100, giving the right to [333]*333impound, should not he understood in the same sense. On the contrary the owners of adjoining occupied lands are bound by the present statute to make, each his portion of the division fence, and neither can lawfully impound the cattle of the others, if they enter upon, his land through his, the impounder’s, neglect in regard to his portion of such fence. To this extent it is the duty of the impounder, as between him and the adjoining proprietor, to enclose his land, although it is otherwise as between him and other persons.
In looking at the whole law on the subject of fences and impounding beasts, in connection with the history of the legislation on the subject, it is fairly to be inferred that by the existing statutes it was not intended to extend this summary remedy by impounding to beasts damage feasant, upon wild, uncultivated, unimproved and unoccupied land lying open and common.
The plaintiff’s cattle may have been doing damage in the defendant’s dose as alleged in the pleas, and yet not have been in the ■defendants endosure, within the meaning of the statute. The pleas in this respect are defective, as there are no other words of description which supply the defect. Had the term endosure been used in the pleas, instead of the word close, it would have obviated this objection without any allegation in relation to fences.
The next objection taken to the pleas is that no notice to the plaintiff is alleged of the impounding and for the appointment of appraisers, as the statute requires to be given.
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The opinion of the court was delivered by
Peck, J.
This case was argued at the last term of this court upon demurrer to the defendant’s special pleas. Numerous special causes are assigned in the demurrer, but such only need be noticed as are relied on in argument.
The first question is whether the word close, used in the pleas, is such a description of the premises in which the cattle were taken damage feasant, as brings the case within the statute giving the right of impounding, that is, whether the word close is equivalent to the word enclosure used in the statute. The right to impound depends upon the statute, and the plea must allege such facts as bring the case within it. The statutes on the subject of impounding cattle damage feasant, have been and should be construed in connection with the statutes in reference to fences. The act of 1797 Slade’s St., p. 450, § 5, provided, “that it shall and may be lawful for any person to impound any swine, neat cattle, horses, sheep or other creatures that shall be found damage feasant, or doing damage in his [331]*331enclosure.” Under this statute it was held in Mooney v. Maynard, 1 Yt. 417, that the right to impound cattle damage feasant did not exist unless the locus in quo was enclosed by a legal fence, except ®uch fences as the owner or keeper of the cattle, or the adjoining proprietor, was bound to keep in repair. This case in effect decides that enclosure in the statute means land enclosed by a legal fence, except such part of the fence as the owner or keeper of the cattle, or the adjoining proprietor, is bound to repair. The Revised Statutes of 1839 has substantially the same provisions in relatiou to fences as were in force at the time of the decision of Mooney v. Maynard, except a provision that excuses the land owner, .(so far as relates to this question,) from fencing on the highway. Rev. St. p. 412, § 4, provides that, “.any person may impound any beast found in his enclosure doing damage” — thus using the same term to designate the locus in quo that had been used in the act of 1797, and defined in Mooney v. Maynard. It also enacts in substance the decision in Mooney v. Maynard, with a slight modification .corresponding with the alteration of the law as to fence .upon the highway. It is in section 16, page 519, which provides that, no person shall have a right to impound any beast taken doing damage, unless the fence to the enclosure, in which such beast was taken, shall he legal and sufficient, except fences adjoining .the highway, and fences that ■ the owner of such beast is required by law to make and repair. The same provisions are in the Compiled Statutes." This shows clearly that the intention was that the term enclosure in section 4 should have the same limited construction that had been given to it under the statute of 1797. The word enclosure therefore imports, land enclosed with something more than the imaginary boundary line, that there should be some visible or tangible obstruction, such as a fence, hedge, ditch or something equivalent, for the protection of the premises against .encroachment by cattle. Under this statute it is evident the term close, used in the plea, is too comprehensive, it embraces land owned by the party or of which he is in the rightful possession, although enclosed only by the imaginary boundary line which defines its territorial limits. The plea therefore under this statute would be insufficient.
[332]*332But the act of 1853 regulating the subject of fences, in terms repeals section 16 of the Revised Statutes, above mentioned, and that section is not contained in the General Statutes under which the question in this case arises. It is insisted on the part of the defendant that however it might have been under the former law, that since the repeal of section 16 of the Revised Statutes, and under the present law on the subject of fences, the rule is different; that under the former statutes the owner or occupant of land was bound to fence his neighbors cattle out, but that under the present law's the owner or keeper of cattle is bound to fence them in, and that if he suffers them to stray off his own land on to the land of others, it is a trespass, and the cattle may be lawfully impounded. This is true so far as relates to occupied land, except as to division fences. If under the General Statutes a party has a right to impound cattle taken damage feasant on his land whether it is occupied land, or unoccupied, wild and common, and without reference to any duty on his part to fence the land, then it is immaterial whether the term enclosure or close is used in the plea, as either would be sufficient. The question is, does the right to impound exist to this extent under the present statutes. The provision giving this right is, “any person may impound any beast found in his enclosure doing damage.” (G. S., p. 617, § 4.) The same language is used as that in the previous statutes. Had the legislature intended to extend the right to impound in all eases, whether the locus in quo was occupied or unoccupied, fenced or unfenced, the term enclosure probably would have been omitted and a moi'e comprehensive term been substituted, some term that had not already received the limited construction that had been put upon that word in the former statutes. Section 1 of chapter 102, General Statutes, page 625, has a bearing on the question. After providing what description of fences “shall be deemed legal and sufficient,” it proceeds, “except fences on the sides of highways, which the owners of lands are not bound to build and sustain, and all occupied land bordering upon highways shall be deemed to be the enclosure of the owner or occupant;” thus indicating that only occupied land is deemed an enclosure. There is no apparent reason why the word “ enclosure” in section 4 of chapter 100, giving the right to [333]*333impound, should not he understood in the same sense. On the contrary the owners of adjoining occupied lands are bound by the present statute to make, each his portion of the division fence, and neither can lawfully impound the cattle of the others, if they enter upon, his land through his, the impounder’s, neglect in regard to his portion of such fence. To this extent it is the duty of the impounder, as between him and the adjoining proprietor, to enclose his land, although it is otherwise as between him and other persons.
In looking at the whole law on the subject of fences and impounding beasts, in connection with the history of the legislation on the subject, it is fairly to be inferred that by the existing statutes it was not intended to extend this summary remedy by impounding to beasts damage feasant, upon wild, uncultivated, unimproved and unoccupied land lying open and common.
The plaintiff’s cattle may have been doing damage in the defendant’s dose as alleged in the pleas, and yet not have been in the ■defendants endosure, within the meaning of the statute. The pleas in this respect are defective, as there are no other words of description which supply the defect. Had the term endosure been used in the pleas, instead of the word close, it would have obviated this objection without any allegation in relation to fences.
The next objection taken to the pleas is that no notice to the plaintiff is alleged of the impounding and for the appointment of appraisers, as the statute requires to be given. The neglect to give notice for the appointment of appraisers does not vitiate the proceedings. It only operates as a waiver of damages, but not of the costs and expenses. But the party who impounds another’s beasts, acting in his own behalf, becomes a trespasser ab initio by neglecting to give notice of the impounding, to the owner of the beasts, if known, and is subject to a penalty for such neglect. In many cases it is sufficient for a defendant in trespass to plead such facts as justify the original trespass; and if the plaintiff relies on a subsequent act which renders the defendant a trespasser ab initio, he must reply it. But this redress by impounding is a summary proceeding without process, the giving of notice thereof is an affirmative act required by statute to be done almost immediately, within twenty-four hours, and the per[334]*334formance of this duty is material to the interests of the owner of the cattle, and is to be regarded as a part of the impounder’s justification, to he by him alleged and proved. An officer can not justify under returnable process without alleging a return of it, If the defendant, in this case, is affected by this neglect to give notice, the same as if he had impounded the cattle in his own behalf, then the pleas are had for the omission to allege notice of the impounding» But if the defendant had no interest in the proceedings, but acted in driving the cattle to the pound and delivering them into the custody of the pound-keeper, as the mere servant, and at the immediate request of the owner, Ms employer in the transaction, or at the request of one standing in the place of the principal in interest, he is not responsible for the neglect to give notice, no more than an assistant of a sheriff can become a trespasser by relation by reason of the subsequent neglect of the sheriff to return the process. His act being legal at the time it was done, and he not being charged by his employment with the duty of giving notice, he can not be made a trespasser by the subsequent neglect of others whose duty it was to give the notiee. A hired man or son of the owner or occupant of the close, a mere servant, who acts under the direction of his employer, (the impounder,) can not thus be made a trespasser by reason of the subsequent neglect of the impounder. The last two- pleas show that the defendant stood in this relation. and therefore this objection to them is not well taken.
The first special plea alleges that one Fisher of Boston, Massachusetts, was possessed of the close ealled the company farm, and that the defendant was the appointed agent of Fisher for the purpose of keeping the fences in proper repair and protecting the premises from damages from cattle running at large, and for seizing and impounding, for and in the name of Fisher, all cattle found trespassing upon the close; and that he impounded the cattle in behalf of Fisher by virtue of the agency alleged. This was such a general agency in relation to the farm as imposed by the defendant, as between him and his principal, the duty, if he impounded cattle doing damage, to give the necessary notice to legalize the proceedings, as it is to be intended from this plea that the defendant acted in [335]*335impounding the beasts, not under the immediate and specific directions of Fisher given on the occasion in question, hut in the absence of Fisher, and under his general authority previously delegated. The owner of the premises residing out of the state, and the defendant acting under this general authority, the plaintiff has a right to treat him as standing in the place of his principal so far as to hold him responsible for the omission to give notice of the impounding. If the defence rested upon this plea alone, the defendant would be a trespasser ah initio ; but this is unimportant to the decision of the case, because the other two pleas are free from this objection. But as the objection that the pleas do not allege the locus in quo to have been an enclosure, or occupied or improved land, and as this objection applies to all the special pleas, the judgment of the county court is reversed, and pleas .adjudged insufficient, and the cause remanded with leave to .the defendant to replead on the usual terms as to costs.