#### LLOYD S. JONES v. JOHN WITHERSPOON.

A planter, who has not a fence, as required by law, about his cultivated field', nor any navigable or deep water to serve instead thereof, is not entitled to* recover for a trespass committed by domestic animals- on a field thus unprotected.

Tins was an action of trespass, tried before Heath-, J., at the Spring Term, 1860, of Caldwell Superior Court.

The plaintiff declared for, that the defendant so carelessly and negligently kept his horses, mules and other cattle-, that they escaped from his land, went thence upon the plaintiff’s land, then in cultivation, and there injured and destroyed a large quantity of plaintiff’s corn and peas, then in his field maturing.

The plaintiff offered evidence to show, and did show, that lie was the owner of a plantation on one side of the Yadkin *556river, and that the defendant was the owner ©f another plantation on the opposite side of the same riyeiyitbeing the dividing boundary between the respective tracts of land ; that both plantations were surrounded by good and legal fences on all sides save where the river was the -dividing line; while along that and between the two plantations, there was no fence whatever, and that the Yadkin, at this point, was-a narrow shallow stream, easily forded by cattle, horses or mules. The plaintiff further proved, that in the summer of 1858, he had in his field, bordering on the river as aforesaid, a-crop of corn and peas then maturing and nearly matured; that the defendant, at that time, turned his horses, mules and other cattle into bis own field, situated as above described, (which was in grass,) and that they, several times, escaped and passed over the river into the plaintiff’s field, and ate, and destroyed the plaintiff’s growing crop of corn and peas. Eor this, the action was brought. The question ®f damages was submitted to the jury, and the question, whether the plaintiff was entitled to recover on the state -of facts above described, was reserved by his Honor. A verdict was taken for the plaintiff) subject to his Honor’s opinion upon the point of law reserved, with leave to set aside the verdict and enter a nonsuit, in case the Court should be against the plaintiff on the question of law.

The Court being of -opinion that the plaintiff could not recover, set aside the verdict and directed a nonsuit, from which plaintiff appealed.

Gaither and Foils, for the plaintiff

Lemoi/r, for the defendant

Manly, J".

The case -made by the transcript from the 'Superior Court of Caldwell is, whether a planter, who has not a fence as required by law, about his cultivated field, nor any navigable or deep water t® serve instead thereof, can recover for a trespass of the defendant’s domestic animals on a field 'thus unprotected. We answer with the Court below, that he cannot.

*557To maintain a liability of the kind, it would' be necessary to hold that the proprietors of such animals are' bound to keep them under restraint and prevent them from going and pasturing on the uninclosed grounds of a neighbor. Eor, we take it, the rights and liabilities of the- parties would be the-same in a case where there is no fence- or barrier, and one in-which the barrier is declared by law, to-be insufficient.

At the term of tins Court, which has j.ust closed its session at the city of Raleigh, we held, incidentally, in the case of Laws v. North Carolina Rail Road Company, (ante 468,) that a proprietor of cattle is not obliged to- keep them from the unenclosed lands- of a neighbor. The- going at large of all kinds of domestic animals upon uninclosed lands about them seems to be a matter commonly tolerated by the laws and usages of the country. The law makes- it penal to kill animals trespassing upon a. cultivated field that is not lawfully enclosed, and also indictable to kill them- in the range in certain localities; from which, it would appear that they are not without the pale of the law’s protection when in these conditions. And although they may be trespassers, having no right of pasture outside of the owner’s lands, and, therefore, may be driven and kept off, if possible, yet, to effect these objects it is not lawful to kill, maim or abuse. In short, the law recognises, in a variety of ways, the going at large of domestic animals as a common privilege, and it would seem to follow, as a necessary consequence, that the owner is not liable, in trespass, for breaking the close when the former’s cattle wander in search of food upon the latter’s uninclosed grounds.

Thus the keeping under inclosure domestic animals, which is regarded as the rule of the common law of England, if it were ever recognised in our waste and thinly populated country, has been long since abrogated by' various legislative acts and by constant usage to the contrary.

- The stream between the parties to this suit, by the statement of the case, appears to be insufficient as a substitute for *558a fence, and we have already said it is the same, whether there be no fence or an insufficient one.

We are of opinion, therefore, in the case before us, neither proprietor would be liable to the other for damage done by animals of the one, wandering across the common boundary upon the lands of the other*

Per Ouriam,

Judgment affirmed.