1874 Νου. 19. ELLIS v. THE LOFTUS IRON COMPANY. Trespass-Animal, Owner liable for trespass of-Negligence. The defendants' horse having injured the plaintiff's mare by biting and kicking her through the fence separating the plaintiff's land from the defendants' : Held, that there was a trespass by the act of the defendants' horse, for which the defendants were liable, apart from any question of negligence on the part of the defendants. APPEAL from the county court judge of Glamorganshire. The action was brought to recover 507. for injuries to the plaintiff's mare caused by the defendants' negligence. The plaintiff was the occupier of a farm in the parish of Llansarran, and by arrangements between the plaintiff's landlord, the plaintiff, and the defendants, a portion of a field of the plaintiff's farm was let to the defendants for the execution of certain works, and a plot was fenced in by the defendants by means of a wire fencing. The plaintiff's land, which adjoined the part taken by defendants, was used by him as grazing land for horses and cattle to the knowledge of the defendants. The defendants were possessed of an entire horse, used by them as a draught cart-horse, and on Sunday, the 18th of August, this horse was turned into the plot occupied by the defendants. The plaintiff had full knowledge of the condition of the fence surrounding it. The mare grazed in the remaining portion of the field adjoining that portion occupied by the defendants. The defendants' horse had been turned out on former occasions on the same plot and had always been watched. The horse of the defendants and one of the plaintiff's mares got close together on either side of the wire fence, and the horse by biting and kicking the mare through the fence committed the injury complained of, the damage being taken at 157. It was proved that the defendants' horse did not trespass on the land of the plaintiff by crossing the fence. Both animals were close to the fence when the injury happened. There was no evidence that the horse was of a vicious temper, or had bitten or kicked any animal before; on the contrary, it was stated that the horse was as quiet a temper as you would ever wish a horse. The plaintiff had warned the defendants to keep the horse away from his mares. The judge being of opinion there was no trespass, and that the damage was too remote, held there was no case for the jury. The question for the Court was, whether the plaintiff was entitled to recover from the defendants for the injuries caused as aforesaid, the horse being a stallion. Field, Q.C. (with him B. Francis Williams), for the plaintiff. There was certainly a trespass in this case, and the damages were not too remote. It is clear that some portion of the horse's body passed over the boundary line between the plaintiff's and the defendants' land when the injury was inflicted. The law is well established that the owner of an animal is responsible if the animal does that which if done by the owner himself would have been a trespass apart from any question of negligence. [He cited Lee v. Riley (1); Cox v. Burbidge (2); Read v. Edwards (3); Com. Dig. title Trespass, C.; Chitty on Pleading, 7th ed. vol. i. p. 93.] Grantham (with him Charles Hall), for the defendants. The authorities which appear to bear out the plaintiff's proposition are cases of acts done by animals in consequence of dangerous or vicious propensities, either natural to the animal or known by the defendant to exist; such cases are distinguishable from the present. In such cases it is negligence on the part of the defendant not to insure, by the necessary precautions, against the animal's doing the act. It is natural to an animal to stray, therefore the owner must keep him in. It is contended that negligence is necessary to render the owner of the animal liable for the animal's act. Here there is no evidence of negligence on the defendants' part. The plaintiff was equally guilty of negligence if there were any on either side. [He cited Star v. Rookesby (4); (1) 18 C. B. (N.S.) 722; 34 L. J. (C.P.) 212. (2) 13 C. B. (N.S.) 430; 32 L. J. (C.P.) 89. (3) 17 C. B. (N.S.) 245; 34 L. J. (C.P.) 31. (4) 1 Salk. 335. 1874 ELLIS v. LOFTUS IRON CO. 1874 ELLIS v. LOFTUS IRON CO. Blackman v. Simmons (1); Erskine v. Adeane (2); Jenkins v. LORD COLERIDGE, C.J. The judgment of the county court judge must, I think, be reversed, on the ground that there was evidence of a trespass, and the damages were not too remote. I cannot say I entertain any doubt in the matter. It is clear that, in determining the question of trespass or no trespass, the Court cannot measure the amount of the alleged trespass; if the defendant place a part of his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it. It has, moreover, been held, again and again, that there is a duty on a man to keep his cattle in, and if they get on another's land it is a trespass; and that is irrespective of any question of negligence whether great or small. In this case it is found that there was an iron fence on the plaintiff's land, and that the horse of the defendants did damage to that of the plaintiff through the fence. It seems to me sufficiently clear that some portion of the defendants' horse's body must have been over the boundary. That may be a very small trespass, but it is a trespass in law. The only remaining question is, whether the damages were too remote? I cannot see that they were; they were the natural and direct consequence of the trespass committed. These considerations would dispose of the case, but apart from any technicalities of law, it seems to me that the merits are in the plaintiff's favour. It appears that a piece of land was railed off for the defendants' convenience, and the plaintiff being in the habit of keeping mares on the adjoining land previous to this accident, the defendants' stallion had always been watched. Therefore without saying that there was any gross negligence or carelessness on defendants' part, I think there was some default on their part, without which the accident would not have happened. It is not necessary for me to discuss the authorities that have been cited at length. I will only say that Lee v. Riley (4) is a very strong authority for our (1) 3 C. & P. 138. (2) Law Rep. 8 Ch. App. 756. (4) 18 C. B. (N.S.) 722; 34 L. J. (C.P.) 212. present decision. For these reasons I am of opinion that our judgment should be for the plaintiff. KEATING, J. I am of the same opinion. The county court judge appears to have held that the facts as stated did not amount to evidence of an actionable wrong on the part of the defendants. There seems to me, however, to be abundant evidence that the defendants' horse committed a trespass for which the defendants are liable. The horse, it is found, kicked and bit the mare through the fence. I take it that the meaning of that must be that the horse's mouth and feet protruded through the fence over the plaintiff's land, and that would in my opinion amount in law to a trespass. If evidence of negligence was necessary to constitute a trespass in this case, in my opinion there is abundant evidence of negligence on the defendants' part, and none on that of the plaintiff. The defendants erected the fence, and turned the horse into the field for their own convenience; they had ample warning with respect to the danger, and in consequence of such warning they had the horse watched on previous occasions, but failed to do so on the occasion when the damage was caused. BRETT, J. I must confess I did entertain some doubt on this matter. The questions are whether there was any evidence of a trespass on the plaintiff's land, for which the defendants would be liable, and if there was, then, whether the damage is too remote. I had no doubt that if there was evidence of negligence, and as a result of such negligence an animal of the defendants passed wholly or in part on to the plaintiff's land, such a circumstance would constitute a trespass; but what I did doubt for some time. was, whether, where there was no negligence at all on the part of the defendants, the same consequence would follow. Having looked into the authorities, it appears to me that the result of them is that in the case of animals trespassing on land the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act, if done by himself, would have been a trespass. Blackstone, 16th ed. vol. iii. c. 12, p. 211; Chitty on Pleading, 7th ed. vol. i. p. 98; and Comyns' Digest, title Trespass C. are all authorities to this effect. If, however, it were 1874 ELLIS v. LOFTUS IRON CO. 1874 ELLIS v. LOFTUS IRON CO. necessary that there should be evidence of negligence, I cannot say that I should go the length that my Brother Keating did in saying that there was abundant evidence of negligence, though I think there was some evidence. That would be sufficient to support our judgment in any view of the law, but I put my judgment on the ground that by law there was a trespass in this case without evidence of negligence. That being so, the question remains whether the damages were too remote. The case of Lee v. Riley (1), is a distinct authority to the contrary, and the American case of Vandenburgh v. Truax (2), quoted in the notes to Vicars v. Wilcocks (3), is to the same effect. DENMAN, J. I rather agree with my Brother Brett as to the amount of the evidence of negligence in this case. I am by no means clear that there was such evidence of negligence, as, if it was necessary to prove negligence, would have properly entitled the plaintiff to a verdict. The county court judge appears to have nonsuited the plaintiff on the ground that there was no trespass, and the damages were too remote. Now, during the early part of the argument I thought it a very strong thing to say that whenever any part of an animal passed over or through a fence, inasmuch as the same act, if done by a man, might technically be a trespass, therefore there was a trespass on the part of the owner of the animal. But after hearing the authorities cited, and especially the case of Lee v. Riley (1), and the passages from Comyns' Digest and Chitty on Pleading, it appears to me that they undoubtedly bear out that view. It seems hard, when two parties have adjoining lands with a fence between them, and a quarrel arises between the animals on either side of the fence, one party should be liable for the consequences, though not in reality guilty of default or neglect any more than the other party, by reason of the application to the mere act of an animal of the technical rule, Cujus est solum ejus est usque ad cælum. I must say, however, that I cannot see, upon the authorities, any escape from the conclusion that it must be so. The only remaining point is whether the damages were too remote. (1) 18 C. B. (N.S.) 722; 34 L. J. (C.P.) 212. (2) 4 Denio, 464. (3) 2 Sm. L. C. p. 499, 6th ed. |