The Arizona champion., 1890-03-08


 period in this respectl Cattle hogs, and other kinds of live stock not known to be breachy and unru
 ly, or dangerous, have been allowed
 at all times and in all parts of the
 State to run at large and graze on
 the range of uncultivated and unin
 closed lands. So that it has
 been the general custom of the
 people of this State, since its first settlement, to allow their cattle,
 hogs, horses, etc., to run at large, and range upon the uninclosed lands of the neighborhood in which they are kept; and it has never been understood by them that they were tort feasors, and liable in damages for letting thelr stock thus run at large. The existence or inforcement of such law would have greatly retarded the settle ment of the country, and have been against the policy of both the gen eral and the State governments.
 ''The common understanding up- on which the people of this State have acted since its first settlement has been that the owner of land was obliged to inclose 1t with a view to it's cultivation; that with out lawful fence he could not, as general thing, maintain an action for trespass thereon by the cattle of his neighbor running at large; and that to leave uncultivated lands uninclosed was an implied license to cattle and other stock at large to traverse and graze them. Not only, therefore, was this alleg- ed rule of the common law inappli- cable to circumstances and condi- tion of the people of this State, but inconsistent with the habits, the interests, necessities, and under standing of the people"
 In the case of Seeley V. Peters, 10 III. l42, in the Supreme Court of Illinois in lS48, six years earli- CT than the Ohio case, the court in reference to the same subject by Judge Trumbull uses the following language:
 Perhaps there is no principle of the common law so inapplicable to the condition 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. It has been the custom in 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 locat- ed themselves contigous to praries for the very purpose of getting the benefit of the range. The right of all to pasture their cattle upon un- inclosed ground is universally con ceded No man has questioned this light, although hundreds of cases must have occurred where the owners of cattle have escaped the payment of damages on ac- count of the 1nsulliciency of the fences through which their stock have broken, and never till now has the common law rule, that the owner of cattle Is bound to fence them up, been supposed to prevail or to be applicable to our condi- tion. The universal understanding of all classes of the community, upon which they have acted by in- closing their crops and letting their cattle run at large, is entitled to no little consideration in determin- ing what the law is, and we should feel inclinel to hold, independenG Of any statutes upon the subject, on account of the inapplicability of the common law rule to the condi- tion and circumstances of our peo pie that it does not and never has prevailed in Illinois. But it is unnecessary to assume that ground | in this case. Tn, le :isIation upon this subject, from the time when we Were part of the Indiana Ter ritory down to the last law con tained in the Revised Statutes, | clearly shows that the la- iSlatur6 never supposed that this ruIa of the common law prevailed in Illinois, or intended that it should.'1
 The same principal is asserted in the case of Comerford V. Dupay. | l7 California 3lO; and in the case of Logan " Gedney, 38 California, 579, the court distinctly held that 'the rule of the law of England, that every man is bound to keep ! his beasts in his own close under the penalty of answering in dama- ges for all injuries resulting from their being permitted to range at large, never was the law in Cali fornia." This decision is the more | in point, as California, like Utah, was acquired from Mexico by the same treaty. See also Stuhwell V. Ritch, IA Connecticut 293.
 As evidence of the liberality with which the government of the United States has treated the en- tire region of country acquired from Mexico by the treaty of