Rust v. Low
Massachusetts Supreme Judicial Court
This was a replevin of cattle. The defendants, as bailiffs of Abigail Trask, well acknowledge the taking and detaining them as damage feasant in the close of the said Trask.
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This was a replevin of cattle. The defendants, as bailiffs of Abigail Trask, well acknowledge the taking and detaining them as damage feasant in the close of the said Trask. To this conusance the plaintiff pleads in bar, that he is seised of a close called Biscay Island, which is enclosed by a fence ; —. that to his said close are adjoining Trask’s close, the locus in quo, Riggs’s close, and also Low’s close ; — that Riggs’s close is also adjoining upon Trask’s close; — *and that Low’s [*91 ] close is adjoining to Riggs’s close ; —- that the partition fence, between the plaintiff’s close and…
1Opinion of the CourtParsons, C. J.
[After reciting the pleadings.] We are to decide whether the bar is, or is not, a sufficient answer to the conusance.
At common law, the tenant of a close was not obliged to fence' against an adjoining close, unless by force of prescription ; but he was, at his peril, to keep his cattle on his own close, and to prevent them from escaping. And if they escaped, they might be taken, on whatever land they were found damage feasant; or the owner was liable to an action of trespass by the party injured. And where there was no prescription, but the tenant had made an agreement to fence, yet he could…
2Cases cited3 opinions
- Cook v. StearnsMassachusetts Supreme Judicial Court · 1814
- Chambers v. FurrySupreme Court of Pennsylvania · 1792
- Spear v. BicknellMassachusetts Supreme Judicial Court · 1809
3Cited by51 opinions
- Bronson v. CoffinMassachusetts Supreme Judicial Court · 1871
- Lyons v. MerrickMassachusetts Supreme Judicial Court · 1870
- Bush v. BrainardNew York Supreme Court · 1823
- Eames v. Salem & Lowell RailroadMassachusetts Supreme Judicial Court · 1868
- Dillard v. WebbSupreme Court of Alabama · 1876
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