Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-03-16
COURT DECISIONS.
DlGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
vIRcINIAN PILOT.
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.
PoINDEXTER v. MAY.


Supreme Court of Appeals Of Virginia.
February is, 1900
THE FENCE LAW IS CONSTITU-
TIONAL. A LAWFUL FENCE"
is A CONDITION PRECEDENT TO
THE RIGHT TO RECOVER FOR
TREsPASs BY ANIMALS. SUCH
LAW DOES NOT ALLOW AN OWN
Err TO DRIVE HIS CATTLE ON
THE UNENCLOSED LANDS OF
ANOTHER.
This was a suit for an injunction re-
strainng the defendant from turning
or driving his horse and cattle on the
lands OF plaintiff. From Il decree for
plaintiff the defendant appealed.
The court, after referring to the va
rious statutes as to fences which have
been passed by the Legislature. SAYS:
IL is unnecessary to prolong this
opinion by quoting at length from the
statutes referred to, as comprising the
present fence law. 1t is sufficient to
say that the rule of the common law
winch REQUIRES the owner of animals
10 Keep them on his own land or with
III foreclosures is not in force i'm Virginia.
oeing inconsistent with the legislation
OF the State touching the subject of
enclosures and certain treSpaSs:' ex-
cept III those counties where the boards
or Supervisors have acted under sec
'ition 20iS as amended, and adopted
what Is commonly known as the
NO renee Law the common law rule
being restored In the localities where
such action has been taken.
Inc general law imposes on the land
owner no obligation to fence. but when
iand is left unencloSed the owner takes
the risk OF trespass thereon by animals
OF DINERS running at large, and can
maintain no action for such tresDass.
a lawful fence is necessarily con-
ditlon precedent to the right to recov-
err the statute plainly indicates this.
ana to hold otherwise would annul the
whole law on the subject
1t Is further contended that the
renee law is uncons titutional, because
IN violation OF the inherent right Sc
cured to every one of the means of ac-
quiring and possessing property and
also because In violation of the further
constitutional provision that private
property shall not be taken for public
uses without Just compensation
Although the people of Virginia have
peen living under these fence laws
Tor nearly three hundred years, and
there nave been several constitutions
adopted since the foundation of the
government. In which no reference Is
made to the subject. this is the first
time. SO far as we know. that their
constitutionality has been questioned
in this court.
We entertain no doubt of the valid
1ty OF the. laws under consideration.
They were intended for the mutual
peneNt, convenience and welfare of all
the citizens of the Commonwealth.
They do not appropriate private prop
erty FOR public use. but simply regu-
late Its Use and enjoyment. Nor do
they Interfere with the means of ac-
curing and possessing property There
Is nothing in the statute in question
which gives or pretcnds to give any
right to any person to enter upon an
others land and commit any trcspass
thereon, whether the land be fenced or
not They do not impair the rights Of
private property nor In a,.y manner in
terfere with the disposal thereof They
provide reasonable protection for the
rights Of owners of enclosed land. and
limit the redress for trespass to those
injuries with result from their own
non compliance with the law The Leg
iSlature has the power to regulate the
relative rights and responsibilities of
Inc proprctors Of enclosed land and
the owners of stock that Is allowed TO
run at large; and can, therefore, take
from every man his remedy-fer-a-tr tres
pass by cattle unless he enclose his
lands With q lawful fence. without vIo-
constitution OF THE State or United
States.
1T is further contended by appelloe
that, If the fence law be valid. it can
only apply 10 the trespassing cattle of
a person owning or legally occupying
an adjoining close 1t is a sufficient
answer to this that the bill alleges. and
all of It's allegations are admitted by
the answer. that the land is in the pos
session and under the management of
appellant, who has in his possession
and under his control on said farm the
stock complained of. And the statute
provides that If any cattle, etc, shall
enter into any grounds enclosed by
lawful fence. the owner or manager OF
any such animal shall be liable. etc.
The position taken by appellant
that he has a right, under the fence
law, TO turn his cattl In upon his neigh
DORIS premises, where the latter has
rallied to enclose his land with a lawful
fence. is wholly without merit. The
renee law has not repealed, or in any
way impaired the full force and effect
OF the common law rule with respect to
Wiitui or malicious trespass. The an
cient maxim that no man shall take
adVantange of his own wrong in his
prosecution OF defense against another,
IL also in force and controlling in this
direction.
.iie .'e std tutsS IN question do not
REQUIRE, the owner to restrain his cattle
from passing of their own accord upon
the linfenced lands of another they give
him no authority to drive them there
and If he does so, hn is answerable for
whatever damage they may do while
there. Affirmed.
SYLVESTER V. TOWN OF CASEY
Supreme Court of Iowa, January 10
1900 80