The Opinion of the Court was delivered by
This was an action of trespass to personal property, originally commenced by Peters against Seeley before a justice of the peace, and taken by appeal to the Circuit Court.
Upon the trial in the Circuit Court before a jury, Peters “proved that Seeley’s hogs had damaged certain wheat in shock in a field belonging to him and closed.” “The deferid ant (Seeley) then proved that the north side of said field, where the hogs got in, was so badly fenced that hogs which were not breachy could go in and out at pleasure, and that said fence was entirely insufficient to turn hogs. Further, that the north side of said field, where said defective fence was, was bounded by unoccupied and unenclosed prairie, and that a public road passed along said fence at ‘ least part of the way on the north side.” At the instance of the plaintiff below, the Court instructed the jijry: “That it they believe from the evidence, that the defendant’s hogs went into the plaintiff’s inclosure and did damage to his crops, they will find a verdict for the plaintiff, and assess his damages to amount of the injury actually done, and it matters not what was the condition of the plaintiff’s fence, so far as his right to recover some damages is concerned, inasmuch as the owner of a field is not obliged to keep up a fence around his enclosure to keep out his neighbor’s cattle or hogs, but the owners of cattle permit them to run at large at their peril.” To the giving of which instructions the defendant excepted. The jury found a verdict for the plaintiff below, .upon which judgment was entered in his favor.
The errors assigned question the correctness of the instructions of the Circuit Court, which are admitted to have been proper, if the Common Law upon the subject of inelosures prevails in this State ; and to determine whether it does, involves a construction of a part of the 51st chapter of the Revised Statutes, concerning “Inclosures and Fences.” In order to a more perfect understanding of that Act, it may . be well to advert to its history, for although now consolidated into one Act in the Revised Statutes, it originally consisted of four distinct enactments, passed at different times.
"On the 20th of-July, 1819, (Laws 1819-23,) an Act was passed regulating inclosures, the first section of which provided “that all fields and grounds kept for inclosure, shall be well inclosed with a fence composed of sufficient posts and rails, pps.ts and palings, palisadoes, or rails alone, laid u,p in the manner called a worm fence, which posts shall be deep set and strongly fastened in the earth ;„'and all fences composed of posts and rails, posts and palings, or palisadoes, shall be at least five feet in height; and all fences composed of rails, in manner which is commonly denominated a worm fence, shall be at least five feet six inches in height, the up-v permost rail of each and every point thereof supported by strong stakes, strongly set and fastened in the earth, so as to compose what is commonly called staking and ridering, otherwise the uppermost rail of every pannel of-such worm fence shall bp braced with two strong rails, poles, or stakes, locking eách corner or angle thereof,” &c. This section further provides, that the apertures between the rails or palings shall not exceed a certain number of inches, and for the worm of worm fences7| The second section provides, that the owner of any animal that shall break into any person’s inclosure, the fence being of the height and strength specified in the first section, and found and approved to be such by the view of two persons for that purpose appointed by the County Commissioners, shall be liable to make good all damages to the owner of the inclosure; for the first offence, single damages only: and ever afterwards, double the damages sustained. The balance, of .this Act relates to partition fences. On the 23d of February, 1819, another Act was passed, (Laws 1819-37,) regulating the inclosing and cultivating of common fields. These Acts were in force in the Indiana Territory as early as 1807, and before the Territory of Illinois was organized, and they are retained in the Revised Laws of 1833.
In' 1835, January 27, (Gales’ Statutes, 278,) an Act was passed to amend the Act of 1819, “regulating inclosures.,, The first section of this Act provides as follows : “That if any horse, mare, gelding, colt, mule, or ass, sheep, lamb, goat, kid, bull, cow, heifer, steer, or calf, or any hog, sboat, or pig, shall break into any person’s inclosúre, the fence being good and sufficient, the owner of such animal or animals shall be liable in an action of trespass, to make good all damages to the owner or occupier of the inclosure, for the first offence, single damages only, and ever afterwards, double the damages sustained.”
The 2d section provides that the condition of the fence at the time the trespass was committed, may be proven upon trial, and also for summoning three householders to view the fence, whose testimony shall be good evidence touching the sufficiency thereof.
Section three makes the person injuring animals breaking through, for want of a sufficient fence, liable for such injury.
Section four requires notice to be given to the owners of animals trespassing, (if known,) and if they refuse to secure them, authorizes the person trespassed upon to secure and feed them, for which they are to receive a compensation from the owner; and section five repeals the 1st and 2d sections of the Act to which it is an amendment.
In the Revised Statutes of 1845, the three foregoing Acts, and an Act providing for the removal of fences made by mistake on the lands of other persons, constitute but one chapter, th"e 15th, 16th, 17th, and 18th sections of which are the same as the first four of the Act of 1835, and the balance of the chapter is made up of the other three Acts above referred to, omitting the first t^e^M^Ée Act of the 20th of February, 1819, whi<^^^RlMk$jy!!hfcd by the Act of 1835. V V1 f .
It is insisted on the p¡ ||t ^^Ttl§(^ftQSaht in error, that the foregoing statutes create no obligation [upon the owner of land to inclose it wiwi JjISiBe^wvTe i lould protect it against the depredations «^cattleqyjaggs, and to support this view of the case, numerous lumiorities have been cited to show,
First: That by the Common Law, one need not inclose his fields with a fence, and that inasmuch as the Common Law has been adopted in this State, “so far as the same is applicable and of a general nature,” that therefore this rule of the Common Law prevails in Illinois ; and
Secondly: That similar statutes to those of Illinois have uniformly been held in other States not to change the rule of the Common Law.
Admitting that at the Common Law, the owner of a close was not bound to fence against the adjoining close, except by force of prescription, yet in adopting the Common Law, as wa^s aid in the case of Boyer v. Sweet, 3 Scam. 121, it must be understood only in cases where that law is applicable to the habits and condition of our society, and in harmony with the genius, spirit and objects of our institutions.” S.ee also Penny v. Little, 3 Scam. 301. However well adapted the rule of the Common Law may be to a densely populated country like England, it is surely but ill adapted to a new country like ours. If this Common Law rule prevails now, it must have prevailed from the time of the earliest settlements in the State, and it can be supposed that when the early settlers of this country located upon the borders of our extensive prairies, that they brought with them and adopted as *applicable to their condition a rule of law, requiring each one to fence up his cattle ; that they designed the millions of fertile acres stretched out before them to go ungrazed, except as each purchaser from Government was able to inclo'se his part with a fence ? This State is unlike any other of the Eastern States in their early settlement, because, from the scarcity of timber, it must be many years yet before our extensive prairies can be fenced, and their luxuriant growdh sufficient for thousands of cattle mus be suffered to rot and decay where it grows, unless the settlers upon their borders are permitted to turn their cattle upon them.
Perhaps there is no principle of the Common Law so inapplicable to the condition of our country and. people as the one which is sought to be enforced now for the first time since the settlement of the State. It has been the custom in Illinois so long, that the memory of man runneth not to the contrary, for the owners of stock to suffer them to run at large. Settlers have located themselves contiguous to prairies for the very purpose of getting the benefit of the range. The right of all to pasture their cattle upon uninclosed ground is universally conceded. No man has questioned this right, although hundreds of cases must have occurred where the owners of cattle have escaped the payment of damages on account of the insufficiency of the fences through which their stock have broken, and never till now has the Common Law rule, that the owner of cattle is bound to fence them up been suffered to prevail or to- be applicable to our condition. The universal understanding of all classes of the community, upon which they have acted by inclosing their crops and letting their cattle run at large, is entitled to no little consideration in determining what the law is, and we should feel inclined to hold, independent of any statutes upon the subject, on account of the inapplicability of the Common Law rule to the condition and circumstances of our people, that it does not and never has prevailed in Illinois. But it is unnecessary to assume that ground in this case. The Legislature upon this subject from the time when we were a part of the Indiana Territory down to the last law contained in the Revised Statutes, clearly shows that the Legislature never supposed that this rule of Common Law prevailed in Illinois, or intended that it should. The first and second sections of the Acts of 1807 and 1819, which are incorporated into the Revised Laws of 1833, expressly required all fields kept for inclosures to he well inclosed with a fence, and subjected the owner of cattle breaking through such fence as the law required to the payment of damages. Now although those two sections were repealed by the Act of 1835, yet the same provisions were substantially re-enacted, except that what should constitute a sufficient fence was left to be determined upon the trial instead of being prescribed by law. Why these provisions, if the owner of cattle coming upon the lands of another was liable in any event, whether the latter had a fence or not? What did the law mean, by requiring all fields kept for inclosures to be well fenced ? It has been argued that these provisions, and section 15 of chapter 51, Revised Statutes were declaratory of the Common Law. But the Common Law required no fences, how then could an Act making a fence requisite be declaraory of it? Would the Legislature be guilty of doing so absurd a thing, as to solemnly declare that the owner of cattle breaking into an inclosure, the fencebeing good and sufficient should be liable to damages, provide for summoning viewers to examine the fence, and leave its condition to be proved upon trial, when he would be liable at all events even though there was no fence? There are numerous other legislative Acts clearly manifesting the understanding of the Legislature, that cattle were permitted to run at large, and that the owners of fields were bound to fence against them. The eighteenth chapter of the Revised Statutes prohibits, under a penalty, the planting of castor beans without securing “the same with as good and sufficient a fence as is generally put up and used for the protection of grain crops in the neighborhood.” The 35th chapter subjects drovers to a penalty who drive off any cattle, hogs, &c. of any citizen, either from his own premises, or “from the range in which the stock of any such citizen usually run.” The sixth section of the thirty ninth chapter prevents the taking up and posting “any herd of neat cattle, sheep, hog or goat, between the month of April and the first day of November, unless the same may be found in the lawful fence or inclosure of the taker up, having broken in the same.
The third section of the forty ninth chapter requires the person having possession of the horse of another under certain circumstances, “to turn the same out.” Would the law direct an animal to be turned out where it had no right to run? Why all these various provisions and many others like them, if animals have no right to-run at large?
It is manifest that the Legislature has all along acted upon the presumption that horses, cattle, hogs, &c., might lawfully be at large; the people have always so understood the law, and if there ever was a case where contemporaneous construction and acquiescence could be properly resorted to for the purpose of ascertaining the law, this is surely that case, both as regards the right of stock to run at large, and the necessity for fencing against them. # «t
But we are told that precisely similar statutes have been enacted in other States, upon which their Courts have put a construction which is obligatory'upon this Court. An examination, however, of the legislation in other States referred to, does not warrant the conclusion assumed ly counsel. Some of the statutes and cases construing them most relied upon, of which Massachusetts furnishes the strongest case, will be referred to.
By the third section of the Statute of Massachusetts of 1788, ch. 65, it was enacted: “That any person injured in his tillage, mowing or other lands under improvement, that are inclosed with a legal and sufficient fence, whether such improved land be in common or general field, or in a close by itself, by swine, sheep, horses or neat cattle, may have and maintain an action of trespass,” &c. In the case of Rust v. Low, 6 Mass. 90, the Court held that the provisions of this section were merely in affirmance of the Common Law, and in assigning the reasons for so holding, the Court say: “By this section a man injured in his close which is sufficiently fenced, by sheep, swine, horses or neat cattle, may have his action against the owner. * * * But it cannot be supposed that when goats, asses or mules trespass upon his land, which is sufficiently fenced, that all remedy is taken away;” and as a further reason for their decision the Court refer to a subsequent section of the same Act, which gave the party his remedy in certain cases where his fence was insufficient. These reasons cannot apply in construing the fifteenth section of our Act, because there is no such omission as occurs in the Massachusetts statute, nor is there any subsequent section of the character therein referred to,
. The case of Rust v. Low is the foundation of that of Little v. Lathrop, 5 Greenl. 356, and several other cases to which reference has been made; but as the first case is based upon a statute different from ours, and cannot, therefore, be regarded as an authority in the construction of our Act, the cases founded upon it can have no greater weight. It is, however, insisted on the part of the defendant in error, that the fifteenth and three subsequent sections of the statute have reference only to partition fences, and in support of this proposition, reference is made to 3 Harrison, 368, 4 Hew Hamp. 36, 5 Greenl. 356, and some other authorities, to show that where a section of the statutes of those respective States had declared generally what should constitute a lawful fence, the Courts of those States construing the whole Act together, had limited the language so as to make it apply to partition fences only.
it would swell this Opinion to an unreasonable length, were the various enactments of all these States to be compared with ours, and the distinctions between them pointed out. But whatever may be the construction of their statutes in the States where they were enacted, there can be little doubt, when we look into the legislation of our own State, that the fifteenth section was intended to apply to all inclosures. The first section of the Act of 1819 most clearly applied to all fences. Its language is general, and we have seen no similar provision in any other State. The Act of 1835, now constituting four sections of chapter fifty one of the Rev., Statutes, had no connection when originally passed, with any other Acts, either in reference to division fences, or inclosures of common fields; and the fact that in the revision of the laws it has been incorporated into the same chapter With other Acts in reference to fences, cannot, nor was it ever intended that it should alter its meaning. If the fifteenth section stood in an Act by itself, would any one think of restricting its language, which is general and applies as much to one sort mf fences as another, to division fences ? We cannot see the propriety of restricting the general language of the fifteenth section to one class of fences more than another. By this section a remedy is given to a party whose inclosure is broken into, “the fence being good and sufficient,” and it necessarily follows, that unless the fence be good and sufficient no action lies, no matter whether that fence be a division fence, a fence against the highway, or against the unentered land of Government. The Legislature has not restricted the provisions of this section to partition fences, and we do not feel at liberty or inclined to do so.
The cases which have been referred to, to show that in several of the States cattle cannot lawfully be upon the highways, and that the owner of land is not bound to fence against cattle not lawfully upon the adjoining close, have no application here, for two reasons: first, because as has been shown, in this State a man to be entitled to maintain an action for the trespass of cattle upon his close, must have it surrounded by a good and sufficient fence; and secondly, we have no general law in this State prohibiting cattle from running up on the highways, but, on the contrary, as has been shown, cattle in this State are permitted to go at large. In the case of Studwell v. Rich, 14 Conn. 292, the Court, after stating the English law which requires every man to keep his cattle upon his own lands, say : “such is not the law of Connecticut,” and they quote from Swift, who says : “The owners of land are obliged to inclose them with a lawful fence, or they can maintain no action for a trespass done thereon by cattle.” “This law (the Court continues) naturally grows out of the situation of the country at the time of the first settlement of the State. It was more convenient for our ancestors to inclose their cultivated fields than their pastures. The cattle were suffered to roam over the uninclosed land, and obtain a subsistence wherever they could.”
It is true the Court in Connecticut base their decision upon the statutes of that State, but it is equally true, that there was no statute directly repealing the Common Law rule upon this subject. In South Carolina, by the Common Law of that State, a similar doctrine prevails to that in Connecticut. Fripp v. Hasell, 1 Strob. 173.
An objection has been made to the constitutionality of a law by which one man’s cattle are permitted to enter upon and consume the grass growing upon the land of another without compensation. We can see no force in this objection. The Legislature certainly has the right to regulate the means for enjoying property. It can hardly be insisted that if a man will not make use of the ordinary means to preserve his property, that the public is bound to preserve it for him, or else pay the losses which his own carelessness may have occasioned.
Since the decision in the 5th of Greenleaf, the law has been changed in Maine so that the owners of land are bound to fence against cattle, and in the case of Gooch v. Stephenson, 13 Maine, (1 Shepley,) R. 371, this very point of the constitutionality of the law was raised and thus disposed of by the Court: “If cattle lawfully on adjdjning lands, stray where they might not go, they may be driven off. Or the owner of land may exclude the cattle of others by sufficient fences, and if these are violated, h'e may seize and impound cattle doing damage, or maintain trespass against their owner. * * * Lands in this country cannot be profitably cultivated, if at all, without good and sufficient fences. To encourage their erection, it is undoubtedly competent for the Legislature to give to the owners of land thus secured, additional remedies and immunities. We perceive nothing in the law which violates or impairs the Constitution.” Being, therefore, of opinion, that the rule of the Common Law requiring the owner of cattle, hogs, &c., to keep them upon his own ground does not prevail in Illinois, and that the tenant of land in this State is bound to fence against cattle, it follows that the instruction of the Circuit Court was erroneous, and its judgment is therefore reversed, and the cause remanded for further proceedings.