Adams v. M'Kinney

In England, the law is a fence round every man’s ground, and trespass may be maintained for passing over the uninclosed ground of another against his will. There, as has been stated, on the principle, sic utere tuo, ut alieno non lædas, every man must take care to keep his cattle from going on the land of another. In this country our circumstances have led us to suppose, that every man must take care of his land, that the cattle of others go not on it.

It is not necessary now to say, whether trespass could, or could not, be maintained, for treading down uninclosed grass, &c. or for treading down grass, &c. inclosed by a fence notoriously bad, and such as plainly could not keep off the cattle usually running at large.

The 43d section of the late constitution of this state, which gave general liberty to hunt on uninclosed lands, if it could apply to the case before us, is not in the present constitution.

The act regulating fences gives a new and summary remedy for trespasses on lands, inclosed with fences of the description therein mentioned; but takes not away any remedy, which existed before and at the time of the passing of that act. The person injured, whose fences are of that description, may proceed under that act, or at common law. And if the fences are not of that description, the person injured, though he can have no remedy under that act, may have remedy at common law.

*259If fences, though not what are called lawful, be what are called neighbourly, and sufficient to keep out cattle not breachy, I hold, that trespass will lie: for the owners of mischievous cattle ought to keep them from doing injury. But, whatever the fences be, whether good or bad, if a man drive his cattle over them into the field of another, trespass will lie.

Verdict for the plaintiff, ten dollars.