2dly, This is a charge upon the defendant against common right; for the law bounds every man's property, and is his fence, and this is obliging another to make a fence for him.

3dly, That where a charge is imposed on another, and that against common right, and the charge is laid on him as owner of the soil, or tertenant, the plaintiff in his declaration must make himself a good title; but where he declares against the defendant as a wrong-doer only, and not as tertenant, it is sufficient that the plaintiff declares on his possession.

4thly, That the plaintiff has made himself a sufficient title in this declaration, by showing the defendant bound to this charge by prescription; which prescription is sufficiently alleged; for by tenentes is meant the owners of the fee-simple, and by occupatores, those that come in under them. That tenentes is so taken, appears by the writ de curia claudenda; which is a writ of right, and lies only for a tenant in fee; and as this is a charge upon the land, which runs with it, there is good reason why every occupier should be bound. And it is sufficient for the plaintiff to charge the tenentes and occupatores, because it is impossible that he who is a stranger should be able to know and set forth their particular estates, titles, and interests; but the prescription is annexed to the tenentes, i. e., tenants of the fee. Yet on a traverse of the prescription it would be good evidence, that the tenants for years have from time to time fenced and repaired, for perhaps the estate has not since time of memory been in the actual occupation of the very owner of the fee. The judgment was affirmed.1

CASE on appeal from the County Court of Monmouthshire holden at Newport.

The plaintiff's cause of action was thus laid in the plaint. The plaintiff claims £40, the damages sustained by reason of two of his cows, on or about the 27th of December, 1871, being killed from eating the foliage of a yew tree, which had been then recently felled in a wood of the defendant, which adjoins the plaintiff's land, and into which wood the cows escaped from the plaintiff's land in consequence of the neglect of the defendant to repair a fence belonging to him dividing the wood and land, and which fence the defendant of right ought to maintain in repair.

The plaintiff was possessed of and occupied a close of land, and the

1 Binney v. Hull Proprietors, 5 Pick. 503, accord.

defendant was possessed of and occupied another close of land, being wood land, adjoining the close of the plaintiff, and separated from it by a fence, which was on the defendant's close and was the property of the defendant.

In October, 1871, the defendant sold the fallage of the wood on his close to one Higgins, who accordingly, by his servants, felled the trees and underwood growing thereon; but the defendant did not part with any portion of the soil of his close, which he continued to occupy.

A short time before the 27th of December, 1871, the servants of Higgins felled a beech tree standing near the fence in such a manner that it fell over the fence and broke down a large part of it. The beech tree was felled in a negligent manner. Whilst the beech tree lay on the fence the branches filled up the gap made by its fall; but a few days afterwards the branches were removed by the servants of Higgins, and afte they were so removed, until the 27th of December, there was a considerable gap or opening in the fence, sufficiently large for cattle to pass from one close to the other, during all which time the fence was outof repair; but it was not brought to the knowledge of the defendant or his bailiff that the fence had been so broken.

On the 26th of December the servants of Higgins had felled a yew tree a few yards from the fence and near the spot where the beech tree had been felled. The yew tree was allowed to remain during the night of the 26th in the place where it had been felled. During the night of the 26th the plaintiff's cows, then being lawfully upon the plaintiff's close, escaped through the gap in the fence out of the close of the plaintiff into that of the defendant, and in the morning of the 27th they were found on the close of the defendant near the yew tree.

About midday on the 27th the cows died; and the judge found as a fact that they died from eating some of the foliage of the yew tree, which when eaten to excess is destructive to cattle. At that time of the year there was very little verdure or green food in the fields, and the cows, from being foddered on dry food, were the more inclined to browse the green foliage.

Evidence was given that for more than forty years the fence had been repaired whenever repairs were necessary by the owners and occupiers of the defendant's wood; and also, that on several occasions during the last nineteen years the fence had been repaired by the defendant and his predecessors in estate upon notice being given to him or his bailiff by the occupier for the time being of the plaintiff's close. Whenever the fence was so repaired, it was for the purpose of preventing cattle, lawfully being in the plaintiff's close, from escaping out of it into the close of the defendant.

It was contended for the plaintiff, first, that the facts established an obligation on the part of the defendant to repair and keep in repair the fence for the purposes aforesaid; secondly, that the damage was not too remote to enable the plaintiff to maintain this action; thirdly, that the defendant was liable in this action. Each of these points was con

tested by the defendant, who also contended that the damage was attributable to the felling of the yew tree, relying on Butler v. Hunter, 7 H. & N. 826; 31 L. J. Ex. 214.

The judge found as a fact that there was an obligation on the part of the defendant to repair, and keep in repair, the fence, for the purpose of preventing cattle, lawfully being in the plaintiff's close, from escaping out of the same into the close of the defendant.

He also considered that the damage was not too remote to enable the plaintiff to maintain this action.

The judge found as a fact that the escape of the cows from their own pasture was caused by the negligence of the servants of Higgins, either in not so felling the beech tree as to prevent its falling on the hedge, or, if that was not preventible, in not temporarily fencing round the gap until the tree could be removed and the gap be properly stopped; and he was of opinion that it was the duty of Higgins to so cut and remove the wood as not to injure the rights of the plaintiff. He also found that, neither the defendant nor his bailiff, to whom the management of this wood land was intrusted, received notice of the fence having been broken down. And he held, on the authority of Longmeid v. Holliday, 6 Ex. 761; 20 L. J. Ex. 430, and Butler v. Hunter, that Mr. Higgins (and not the defendant) was responsible for the loss of the cows, as the result of his servants' negligence; and he directed a nonsuit to be entered.

In case of this decision being reversed on appeal, he assessed the plaintiff's damages at £40.

The question for the opinion of the court was, whether the defendant is liable in this action.

Herschell, Q. C. (with him Petheram), for the plaintiff.

Michael, for the defendant.

The judgment of the court (COCKBURN, C. J., MELLOR and ARCHIBALD, JJ.), was delivered by

ARCHIBALD, J.' The only point in this case as to which we felt any degree of hesitation at the time of the argument, was the question whether or not the defendant was entitled to a reasonable time to repair the fence after he might or ought to have had notice that it had been broken down. For, assuming that the obligation to which he was subject was to maintain, at all times, and without notice to repair it, a sufficient fence for the benefit of the plaintiff's close, we had no doubt that the learned judge of the county court was wrong in holding that the defendant was not legally responsible for the loss of the plaintiff's cows.

We concur in opinion with the learned judge, that the damage was not too remote; but we think that the cases cited by him, Longmeid V. Holliday and Butler v. Hunter, are inapplicable; and, without expressing any opinion as to the liability of Higgins, we are of opinion

1 The judgment was read by MELLOR, J. — Rep.

that, if the obligation to maintain the fence be such as we have assumed, the defendant would be liable in this action.

On further consideration we have come to the conclusion, upon the evidence set forth in the case, that the defendant was bound at his peril to maintain at all times, and without notice to repair it, a sufficient fence; and that, exeept in the case of damage by the act of God or vis major, he would be answerable for damage sustained by cattle escaping from the plaintiff's close by reason of the defective state of the fence, and proximately due to that cause.

At common law the owners of adjoining closes are not bound to fence either against or for the benefit of each other; but in the absence of fences each owner is bound to prevent his cattle or other animals from trespassing on his neighbor's premises.

By prescription, however, a landowner may be bound to maintain a fence upon his land for the benefit of the occupier of the adjoining This obligation is described by Gale in his work on Easements the nature of a spurious easement affecting the land of the party is bound to maintain the fence. Gale on Easements, 4th ed. Boyle v. Tamlyn, 6 B. & C.

as in

who

p. 46 0; Star v. Rookesby, 1 Salk. 335; at pp. 337-9.

A party entitled by prescription to the benefit of the fence might. formerly, by means of a writ de curia claudenda (Fitzh. Nat. Brev. 127), have compelled the adjoining owner to repair it, and have recovered damages as well for the non-repair; and a plea in an action of trespass for injury done by cattle, that the plaintiff is bound by prescription to fence against the defendant's cattle, is a good plea: Nowel v. Smith, Cro. Eliz. 709-the party bound by prescription being answerable to the owner for whose benefit the fence is to be maintained for all damage reasonably attributable to its defective condition.

It was held, therefore, in an anonymous case in Ventris, 1 Vent. 264, where a horse of the plaintiff's escaped into the defendant's field through defect of a fence which the defendant was bound to maintain, and was killed by falling into a ditch in the field, that the defendant was liable; and in a later case, Rooth v. Wilson, 1 B. & Ald. 59, that it made no difference that the plaintiff was only a gratuitous bailee of the horse which escaped and was killed. The same view of the law was acted upon in the case of Powell v. Salisbury, 2 Y. & J. 391, where the defendant was held liable for the loss of cattle which escaped from an adjoining field through a defective fence which he was bound to repair, and were killed on his premises by the falling of a haystack.

In all these cases, however, the prescription to maintain and repair obviously implies the pre-existence of the fence, and the right consequently to have it always existing as a fence; in other words, in a condition sufficient both to prevent the cattle of the owner entitled to it from escaping out of his close, and also to protect him from trespasses by his neighbor's cattle, and renders it, we think, incumbent on the

party upon whom the prescriptive obligation is imposed to repair the fence in time to prevent its becoming defective, and subjects him to all risks of injury that may be done to it by strangers or trespassers.

We think, therefore, that, as the true nature of the prescription is that the defendant was bound at his own risk to have a sufficient fence always existing, he was liable to the plaintiff notwithstanding he had no knowledge of the injury done to the fence; and consequently that the decision of the County Court should be reversed, and judgment given for the plaintiff. Judgment for the plaintiff.

BRONSON v. COFFIN.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1871, 1875.

[Reported 108 Mass. 175; 118 Mass. 156.]

CONTRACT on the covenant against incumbrances contained in a deed of land from the defendants to the plaintiff, dated May 24, 1866. Trial in the Superior Court before Putnam, J., and a verdict for the plaintiff. The judge reported the case, and it was argued at October Term, 1870, before all the judges, except Colt, J.1

J. Brown, for the defendants.

T. M. Stetson, for the plaintiff.

GRAY, J. The deed made by Timothy G. Coffin to the New Bedford and Taunton Railroad Company in 1839 conveyed a strip of land between four and five rods wide, and bounded on each side by the lands retained by Coffin and afterwards granted by his devisees to the plaintiff; and contained this clause: "I, the said T. G. Coffin, hereby cove nant that I and my heirs and assigns will make and maintain a sufficient fence through the whole length of that part of the railroad which runs through my farm; this covenant of maintaining the fence to be perpetual and obligatory upon me and all persons who shall become owners of the land on each side of the railroad."

The principal question in the case is, whether the obligation thus expressed, to maintain a division fence between the land granted and the adjoining lands of the grantor, created a charge upon those lands, binding upon any assignee thereof, either by way of covenant running with the lands, or grant of an interest in the nature of an easement therein. which constituted an incumbrance, within the meaning of the covenant against incumbrances in a subsequent deed thereof from the grantor or those claiming title under him.

"On general principles," said Chief Justice Parsons, "every right to or interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee in it by the conveyance,

1 Part of the statement of the case is omitted.