Arizona weekly journal-miner., 1890-03-19

gerous and permitted to go " ere their dan
 gerous character might produce esll results
 Indeed, II IS only within q few years past
 as he country has beea settled and becoms
 highi, cultivated. al tho land nearly being
 70 used by its owners or by their tenants,
 that the question of compelling the owners
 of cattle to keep them confined has been
 tue snbject of agitation
 Nearly ali the States in early days had ] shat wss called the fence law, a law by which kind sF faace, sufficient iu ganer al way te protect the cultivated ground from cattle and eiheF domestic animals which were permitted to run xf large, was prescribed. The character of th.s fence in most 0f the statutes was laid dewH wilh great psrticalaFity, and unless 1t wss ia 1 strict conformity to the statute there wss no lisblisly on the part of the owner of the l cattle if they invaded the enclosure of . 1 party and inflicted injury on him. If the ] owner of the guscnd had his fence con- strsirted iis hecofsisnce xith the require saents sf the statute, the taw presumed then that sn aniyssl which invaded this en- closure was what was esiicd brcachy ami nssI, vas aot such an animal as should be permitted to go at large. and the owner was liable for the damages done by him. Otherwise the right ef the owner Of al a1 nestie aninass to permit shsn to run st large, without responsibility for their got ting upon the .aEsds of his neighbor, wss conceded,
 The Territory cF Utah has now. and has aisays had. q similar statute, section 2921 of the compiled lass cf Utah l. Is now matter Of oocasssaal leglsiafio6 in the States which have been created out Of this public domain. to permit certain counties, og parts cf tho State, or tbe whole of the State, hy s yote oi the people within suoh subdivisions, to determine whether cattle shall longer be permitted to run ct large and the owners of the sosl compelled to rely upon their fences for protection, or whether the caltIa-own-r staH keep them confined, snd in that manner pr,tent his neighbor without the necessity on the rArt of the latter of relying upon fences which he may make for such proieesioh
 Whatever policy may be the result of this current agitation can have no effect upon tho present case, as the las of Utah and its customs in this regard resns,n such a, we have described it to be in the general region If the Northwest, and the privileges accorded by the uaited States for grazing upon hex public lands are subject alone to their conirui
 These principles sere very clearly enun- cia.ea by the Supreme Court of Ohio in 1854 in the case ot kerwhscker ys. the c. c. 4 c. Railrosd Company, 2 Ohio St i7e. In discussing this question, the oour; ex- presses so well tho principle which we are considering that we venture to make sn ex- tensiye quotation frerl tho opiaion
 "Adnlisting ths ruls of the common law in England in relation 10 cattle and other live stock running at large to be such as stated. the question arises whether II Is aP lcable to tho condition and circumstances of the people of this State, and in accord nnce with their habits, understanding and necessities If thu. be tho law in Ohio noa, 1t has been SO siuce the first settle meat ei inc State. and every person who has allowed his stock to run at large aud go upon the uniaclosed grounds of others has been . wrong doer. aud liable to an action for damages by every psrson on whose Iands his creatures may have wandered. What has been lhe actual situation Of af- fairs, and the hsbitA understandings and necessities us the people of thIs Slate from it's tirst settlement np to the present period in this respect Cattle, hogs. and other kinds of live stock net known to be breaeby aud unruly or dangerous, have been ai- losed at all times and in all parts of the State to run at large and grazs on the range of ancusissated and unincsosed lands. . So that t has been the general custom of the pcnpi. If this State. since it's first settlement, U allow their cattle, hogs. horses, etc, to run a, large, and range up on .he uneneiosesl lands of the neighbor- hood in winch they s,so kept; and 1t has never been understood hy them that they were tort feasors, and liable in damages for thus letting their stock run st large. The existence or enforcement of such a. law would have greatly retarded the settlement Of the country. aud have been against the policy of both the general snd the State governments.
 "The common understanding upon which the people of this State have acted since its irst settlement has been that the owner ci land was obliged 10 enclose 1t wIth view to its euitivation; that without 6 lawful fence he ,nld not, as a general thing, nam tam an action for tr spass thereon b. the cattle of his neighboE running st large; and that tc leave ucoit,yated lands unen- closed vas an implied llcens. to cattle and other stock at large b traverse and grsze them. Not only. therefore, wss thls al ieged rule of the comrion law ineppiicshle sa the circumstances aud condition Of the people of this State, hut inconsistent with the habits, the interests, necessities, and understanding of he people. :"
 In the case of Seeley ys. Peters. 10 III. I42, in the Supreme Court of Hqois in lS4S, SIX years earlier than the Che case, the court III reference to the same subject by Judge Trumbull uses the following lan- guage:
 s.perhasss thcre is no principle 0, the common law soolnsppiieabie to the coadi- tion of our country and people as the one which IS sought to be enforced now for the first time since the settlement of the State. IL has been the custom ip Illinois, So long that the memory of man runneth not to the contrary. for the owners of stock to suffer them to run at large. Settlers have located themselves coetiguous to prairies for tho very purpose os getting the benefit of the range. The right of all to pasture their cattle upon unenclosed ground is uni verssiIy conceded No man has sues- tiened this right, although hundreds of cases have occurred wheFe the owners of cattle have escaped the payment of dam ages on account of the insufiieiency of the fences through which then stock have bro ken, and never tilt DOW has the common law rule, that the owner Of cattle Is bound to fence them np, been supposed 10 prsvail or to be applicable to our condition. The universal understanding of all classes of the community, upon which they have acted by enclosing their crops and letting their cattle run at large. Is entitled to ns little consideration in determining what the law k. and We should feel inclined to hold, independent of any statutes upon tho subject, on account cf tae insppiicsbilisy of the common law rule to the condition and circunstanses of our people, that it does not and never has prevailed in Hi nois. But 1t is unnecessary to assume that ground in this case. The legislation upon the subject, from the time when we were part of the Indiada Territory down to the last law contained in the Revised Statutes, clearly shows that the Legislature never supposed that this rule of conimon law prevailed in Illinois, or intended that
 1t should"
 The same principle IS asserted in the casa of Comerford "a Dupuy, r Galifor- nis, BIO; and in the case of Logan vs. Ged