> mi 
 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924013940659 
 
Farmers' Law 
 Guide. 
 
 Being a compilation of the General Laws or the Laws 
 which more especially relate to the business of the 
 Farmer, taken from the 
 
 Statutes and Law Reports of the 
 
 Supreme and Appeal Courts 
 
 of the different States, 
 
 embracing the leading principles of these Laws as 
 expounded and settled by these Courts, in sixteen 
 chapters. 
 
 Compiled by A. Cole, Esq. 
 
 Entered according to Act of Congress in the year A. D. 1892, in the office 
 of the Librarian of Congress, Washingtoii, D. C. 
 
 ■•<;s 
 
PREFACE. 
 
 In presenti)ig this book to the Farmer we place 
 before him m a concise form a large collection of 
 important information on subjects relating to his every- 
 day business affairs, and for the want of a proper 
 knowledge of which he is often led into acrimonious 
 dispute with his neighbor, which many times lead to 
 expensive litigation. 
 
 The man who best understands the laws is the . 
 one who is most likely to keep out of its remorseless 
 powers, and if forced into litigation generally comes 
 off victorious. 
 
 The information given in this book will enable 
 the reader in a short time to familiarize the contents 
 more thoroughly than if years were spent in studying 
 Ihe authorities from which the matter is taken. 
 
 ^:^^^:^'^r.dL«^.W H^ 
 
AGREEMENTS AND CONTRACTS. 
 
 CHAPTER I. 
 
 In the following cases every agreement is void, 
 unless such agreement, or some note or memorandum 
 thereof, expressing the consideration, be in writing, 
 and subscribed hy the party to be charged there- 
 with. (2 N. Y. R.S., 3d ed., 195, s. 2;) 
 
 Every agreement that, by its terms, is not to be 
 performed within one year from the making thereof. 
 (10 Wendel,426; 13 id., 308; 15 id., 345 ; 3 ITill, 
 128, 5 id., 200 ; 2 Barbour's Ch. Rep., 221.) 
 
 Every special promise to answer for the debt, 
 default or miscarriage of another person. (4 "Wen- 
 dell, 657; 9 id., 273; 19 id., 557; 24 id., 35,256; 
 2 Hill, 663; 3 id., 128,584; 4 id., 178; 5 id., 145, 
 160, 483 ; 2 Denio, 45.) 
 
 Every agreement, promise, or undertaking, 
 made upon consideration of marriage, except mutual 
 promises to marry. (10 Wendell, 461.) 
 
 Every contract for the sale of any goods, chat- 
 tels, or things, for the price of fifty dollars, or more, 
 is void, unless : 
 
 A note or memorandum of such contract be 
 made in writing, and be subsbribed by the parties 
 to be charged thereby ; or 
 
Unless the buyer shall accept and receive part 
 of such goods, or the evidences, or some of them, of 
 such things in action ; or 
 
 Unless the buyer shall, at the tipae, pay some 
 part of the purchase money. (2 E. IS., 3d id.,, 
 195; 3 Wendell, 112; 13 id., 54; 17 id., 338; 
 20 id., 431 ; 23 id., 270 ; 24 id., 323 ; 26 id^ 341 ; 
 5 Hill, 201 ; 1 Denio, 51 ; 1 Comstock, 261 ; 2 id.,, 
 258.) 
 
 Every contract for the leasing for a longer 
 period than one year, or for the sale of any lands, 
 or any interest in lands, is void, unless the contract, 
 or some note or memorandum thereof, expressing 
 the consideration, be in writing, and be subscribed 
 by the party by whom the lease or sale is to be made. 
 An agreement to sell growing trees, with the right 
 to enter and remove, is such an interest in lands as 
 to require a contract in writing. (2 R. S., 3d id.,^ 
 194 ; 2 tlill, 485 ; Denio, 550.) 
 
 In contracts for the sale of land, where the 
 vendee gives notice ot a refusal to perform the con- 
 tract, no tender of a deed by the vender is necessary 
 in order to compel a specific performance. (2 Com- 
 stock, 60.) 
 
 In every action upon a sealed instrument, and 
 where a set-ojffis founded upon a sealed instrument,^ 
 the seal thereof is only presumptive evidence of a 
 sufficient consideration. (2R. S., 3d ed. 504, p. 6; 
 Wendell, 107 ; 15 id., 529 ; 21 id;, 626 ; 25 id., 107 ; 
 5 Hill, 63.) 
 
In Pennsylvania, Virginia, Alabama, New Jer 
 sey and Georgia, a scroll of ink made with a pen 
 constitutes a seal ; but in New York and other States, 
 wax, or some tenacious substance is necessary, 
 except it be the seal of a court, public officer, or 
 corporation. (2 Hill 227; 3 id., 493.) 
 
 A party signing an instrument purporting to be 
 executed by him, with his initials only, is bound. 
 {1 Denio, 3, 471.) 
 
 The terra " agree," does not of itself import a 
 consideration. (1 Denio, 226.) 
 
 Where one party puts an end to an executory 
 contract by a refusal to fulfil the other party is en- 
 titled to an equivalent in damages, for the direct 
 gains and profits which he would have realized from 
 performance, though not for the collateral gains or 
 profits, or remote damages. And where a person is 
 employed at a salary and discharged before the ex- 
 piration of the term of service the damages will be 
 reduced, if he subsequently obtained employment. 
 (6 Hill, 63; 1 Denio, 317; 2 id., 609.) 
 
 Where an agreement to lease or sell lands, or a 
 sealed instrument is executed by one acting as an 
 attorney it must distinctly and clearly appear to be 
 the act and deed of the principal ; it must be exe- 
 • cuted in his name and purport to be sealed M'ith his 
 seal. (4 Hill, 351, and authorities there cited.) 
 
 In all ordinary casefe, where the consideration is 
 expressed, there is no diflerence between an agree- 
 ment under seal and one not under seal, except that 
 
the former can be more easily proved, and is there- 
 fore to be preferred. 
 
 Written contracts capable of a sensible con- 
 struction must be determined by the language itself 
 and not by parol proof; although Courts may 
 resort to extrinsic circumstances to discover the 
 intentions of the parties. (1 Barbour's S. G. Rep., 
 464, 635.) 
 
 Misrepresentations of material facts, though 
 not intended to deceive, will entitle a party to re- 
 scind a contract. (1 Barbour's 8. O. Rep., 471.) 
 
 "Written contracts may be waived by parol. 
 (1 Barbour's S. C. Rep., 114, 326.) 
 
FRAUDULENT CONTRACTS. 
 
 CHAPTER II. 
 
 A party to a fraudulent contract cannot rescind 
 it unless both parties can be placed in the same 
 condition in which they were before the contract 
 was made. (Chit, on Con. 678, 752.) 
 
 A person who is induced to part with property 
 in a fraudulent contract, may on discovery of the 
 fraud, avoid the contract, and claim a return of what 
 had been advanced upon it. 
 
 But if the party defrauded would disaffirm the 
 contract he must do so at the earliest practicable 
 moment after the fraud is discovered. That is the 
 time to make his election, and it must he made 
 promptly and unreservedly; he must not hesitate, nor 
 can he be allowed to deal with the subject matter of 
 the contract, and afterwards rescind it. The election 
 is with him he can affirm, or disaffirm the contract, 
 but he cannot do both, and if he concludes to abide 
 by it, as on the whole advantageous, he shall not 
 afterwards be permitted to question its validity. 
 (Mason against Root, 1 Denio 69, Baldwin, Agent 
 V'andusen, 37, K Y. Rep. 489, 409.) 
 
 The mere lapse of time goes far to estab- 
 lish a waiver of the right, and if it be connected 
 with an obvious ability on the part of the defrauded 
 
party, to discover the cheat at a much earlier period 
 by the exercises of ordinary care and diligence, 
 it would be almost conclusive. (Parsons on Con. 
 274.) 
 
 "When a party who has derived benefit from the 
 contract seeks to avoid it on the ground of fraud he 
 must first offer to restore that which he has received, 
 so that the party may be put in statu quo. 
 
 When that cannot be done the contract stands, 
 and the injured party must seek redress in an action 
 on the case for the fraud. He cannot say the con- 
 tract-is good so far as he has derived benefit from it, 
 and void for the residue. (5 Hill, 389, Hogan 
 against Wager, 7 IJill, 124, 131.) 
 
 Where a party has been defrauded, and with 
 knowledge of the cheat, settles the matter in rela- 
 tion to which the fraud has been committed, he 
 has no redress in law or equity, on account of such 
 fraud". (Adams against Sage 28 N. Y. Eep., 103, 
 109. Parsons against Hughs, 9 N. Y. Eeps., 511, 2 
 Story, Equity, L. S. 202, 203. 2 Parsons on Cons. 
 270.) 
 
 If the truth or falsehood of the representations 
 might have been tested by ordinary vigilance and 
 .attention it is the party's own fault that he neglected 
 to do so, and-<he is remediless. (1 Story, Equity, 
 199, 200, 2 Kent Corns. 8 rd. Ea. 634, 635.) 
 
 If a chattel be of no value to any one it can- 
 not be the basis of a bargain, l)ut if it be , of any 
 value to either party, it may be a good consideration 
 
for a promise; if it be beneficial to the purchaser he 
 certainly ought to pay for it, if it be a loss to the 
 seller he is entitled to a remuneration for his loss. 
 In the application of this rule if the article exists 
 who shall undertake to say it is worthless to the 
 vender, hpwever it may turn out to the buyer. 
 (Johnson against Titus, 2 Hill, 606, 608 ; Peasley 
 against Relech, 23, Peck's Rep., 283, 286, Boman 
 against Boman, 8 Rep., 469.) 
 
 A consideration is where there is a benefit to 
 the party promising, or a loss to the vender to whom 
 the promise is made. (Freer viz, Hordenburg, 
 Johnston's Rep., 277.) 
 
 The rule seems to be that a concealment or 
 misrepresentation as to the extrinsic facts which by 
 affecting the market value of things sold, or in any 
 such way affects the contract, are not fraudulent, 
 while the same concealment of defects in the arti- 
 cles themselves, would be fraudulent. (2 Parsons 
 on Con. 273.) 
 
 A false representation in order to have full effect 
 of fraud, must relate to a substantial matter of fact, 
 and not merely to a matter Mdiich rests in opinion or 
 estimate or judgment. (2 Parsons on Con. 275, "1 
 Story Eq. S. 197.) 
 
PURCHASE AND SALE OF FARMS. 
 
 CHAPTER III. 
 
 A mere oral bargain for a farm is not binding 
 in law upon the owner. An offer to sell a farm for 
 a given price, either by letter or other simple writ- 
 ing, may not be binding upon the proposer until it 
 is actually accepted by the buyer, and he has also 
 agreed to take it and pay the price stated in the 
 offer. "Wherefore the owner may retract his offer to 
 sell at any time before it is accepted, and he is noti- 
 fied thereof. And, although in making his offer to 
 sell he should expressly give you a certain num- 
 ber of days in which to decide, he may change his 
 mind in the meantime and sell to another who 
 offers more, even before the given time has expired, 
 and you would have no redress in law for your 
 disappointment. 
 
 Even more ; although you had fully made up 
 your mind to take the farm, and should go to great 
 trouble and expense in buying stock and tools, etc., 
 to carry on farming, and should even move there to 
 take possession, the owner might even then refuse 
 to sell, and you would have no remedy in the law to 
 compel him to convey or to pay you for the expenses 
 you had incurred, relying upon his keeping his 
 word. The only safe way in such cases is to take a 
 
bond for a deed; an ordinary refusal of property 
 for a stated time is a dangerous thing to rely upon, 
 unless you are dealing with a man upon whom you 
 can implicity rely. If a particular time is given you 
 in which to accept an offer to sell you should be 
 particular to signify your acceptance strictly within 
 the time, and do so unconditionally. In one case a 
 man had ten days in which to make up his mind, 
 and on the oight of the last day, about half-past 
 eleven at night, he called at the owner's house, after 
 he was abed, and said he would take the farm. 
 
 The owner refused to get up, or take the money 
 the next day, and the buyer tried to get the farm by 
 a suit at law, but it was decided that he came too 
 late. (26 Miss., 309.) 
 
 In another case A wrote lo B he would sell him 
 his farm for $3,000, cash. B wrote back immedi- 
 ately he would take it if A would make out his deed 
 and send it to a lawyer for examination, and, it all 
 right, the lawyer would pay him his $3,000. But it 
 was decided that B had not duly accepted A's offer, 
 and consequently that he might withdraw it. (58 
 Me., 511.) 
 
BOUNDARIES OB" A FARM. 
 
 CHAPTER IV. 
 
 Three circumstances have more or less weight" 
 in determining the true boundaries of a farm : First, 
 the number of acres stated in the deed ; second, the 
 boundary lines running around the farm; third, the 
 area inclosed within the visible monuments, such as 
 stones, trees, rocks, stakes, described as corners^ of 
 the farm. Of these three the last is by far the most 
 important, and, in case of any difference between 
 them, controls all the rest. If the boundary linfes 
 are described as beginning- at a certain stake and 
 stones, thence to a certain tree, thence to a particular 
 rock or stump, and so quite around the farm, the 
 deed conveys all the land inside of these monuments, 
 although it naay be many more acres than the deed 
 calls for, and on the other hand it will include no 
 more, although the number of acres stated really 
 requires more land to satisfy its number. Ho if the 
 monuments named are fixed and definite, they 
 control the length of the sidelines mentioned in the 
 deed, and if these be called 100 rods long on one 
 side, but the trees, rocks, stakes and stones described 
 are only 90 rods apart, the buyer will acquire a farm 
 only 90 rods square instead of 100 rods, and vice versa, 
 if the lines are described as only 90 rods long, but 
 
given corners are 100 rods distant, the deed covers 
 a. lot or farm 100 rods square. The quantity of 
 acres mentioned is the weakest means of knowing 
 the extent of the farm, even if the words " more or 
 less" be not used, as i& so commonly done, and 
 generally a deficiency in the number of acres gives 
 the buyer no remedy against the seller for any return 
 of part of the purchase money, unless, perhaps 
 when it was clearly bought at the rate of so much 
 per acre. So much more important are the known 
 monuments and boundaries than the number of acres 
 stated tha|t even if the vender fraudulently and 
 intentionally overstates the quantity in order to 
 deceive the purchaser the latter has no redress in 
 law if so th(? seller truly pointed out the boundaries 
 in making the sale. (102 Map., 217." 
 
 Whereas a fraudulent statement of the boun- 
 daries would annul the sale, even though the farm 
 contained as many acres or even more than the par- 
 ties called it in making the bargain. (9 N. Y. 183.) 
 
 A boundary line runs to a tree, rock, stump or 
 other similar objects. It goes to the centre of the 
 object. If it runs by a wall or fence it passes 
 through the middle of it. So if a farm bounds by 
 a brook, river, stream, etc., it usually extends to the 
 middle of the current — not always to the middle of 
 the water, but to the thread of the stream. If there 
 be any islands between that centre line and the 
 bank they belong to the owner of the main bank. 
 
 13 
 
In like manner, if a deed is bounded on a mill 
 pond, reservoir pond, or any artificial pond through 
 which a perceptible current makes its way the 
 farmer prdinarily owns to the centre of the current; 
 on the other hand, if be a large natural pond or 
 lake the line stops at the low-water mark on the 
 shore, and does not extend into the pond, the public 
 having right to such large bodies of water as are 
 useful for navigation, boating, sailing and the like. 
 As to farm boundaries on the seashore, some pecu- 
 liar provisions as to the extent thereof exists. That 
 strip of land between high and low water mark 
 termed "the flats" is a frequent subject of conten- 
 tion, and the question is often asked, to whom does 
 it belong? To the owners of the upland or to the 
 public. If a deed describes the farm as bounding 
 " by the sea," " by the salt water, bay, harbor, cove, 
 creek, stream, river or tide water," it generally in- 
 cludes the whole flats down to low-water mark — if 
 not over 100 rods — including the exclusive right to 
 gather sea-weed or other such things washed up 
 thereon by the tide. On the other hand, if the deed 
 bounds " by the shore," " beach, strand, flats, marsh 
 or cliff"" it extends only to high-water mark, and 
 does not give any right to the flats. While yet 
 again, such are the niceties of the law, if the phrase 
 of the deed is " to the beach or sea," " to the sea- 
 shore," " to the sea or flats," the grantee owns down 
 to the low-water mark, flats and all. 
 
 14 
 
WHAT IS INCLUDED IN A DEED FOR A 
 FARM. 
 
 CHAPTER V. 
 
 Of course all know it conveys all fences stand- 
 ing on tlie farm, but all might not know it also in- 
 cludes the fencing stuff, posts, rails, etc., which have 
 been used in the fence, but have been taken down 
 and piled up for future use again in the same place. 
 (2 Hill, 142.) 
 
 But new fencing material just bought and never 
 attached to the soil would not pass. (It) 111., 480.) 
 
 So piles of hop poles stored away, if once used 
 on the land, have been considered a part of it. 
 (1 Kernan, 123.) 
 
 But loose boards or scaffold poles laid looselj' 
 across the beams of the barn, never fastened to it, 
 would not be, and the seller of. the farm might take 
 them away. (1 Lans., 319.) 
 
 Standing trees, of course, all pass as part of the 
 land ; so do trees blown or cut down and still left in 
 the woods where they fell. (54 Me., 309.) 
 
 But not it cut and corded up for sale. The 
 wood has then become personal property. If there 
 be any manure in the barn, or in compost heap on 
 the field, ready for immediate use, the buyer ordi- 
 narily takes that also as belonging to the farm, 
 though it might not be so if the owner had previ- 
 
 15 
 
ously sold it to some other party and had collected 
 it together in a heap by itself. (43 Vt., 95.) 
 
 Generally crops also pass by the deed of the 
 farm unless they are expressly reserved, and when it 
 is not intended to convey those it should be so stated 
 in the deed itself. A mere oral agreement to that 
 efiect would not be valid in law. (19 Pick., 315.) 
 
 Another way is to stipulate that possession is 
 not to be given until some future day, in which case 
 the crops or manure may be removed before that 
 time. As to the buildings on the farm, though gen- 
 erally mentioned in the deed, it is not absolutely 
 necessary they should be. A deed of land ordi- 
 narily carries all the buildings on it belonging to 
 the grantor, whether mentioned or not, and this rule 
 includes the lumber or timber of any old buildings 
 which have been taken down or blown down and 
 been packed away for future use on the farm. (41 
 K H., 505.) (30 Penn. St., 185.) 
 
 But if there be any buildings on the farm built 
 by some third person, with the former's consent, the 
 deed would not cover these, since such buildings are 
 personal property, anc? do not belong to the land, 
 owner to convey. ' 
 
 The' real owner thereof might move them ofi, 
 although the purchaser of the farm supposed he was 
 buying and paying for all the buildings on it. His 
 only remedj' in such a case would be against the 
 party selling the premises as part of the buildings 
 conveyed. Of course, the window-blinds are in- 
 
 i6 
 
eluded, even if they be at the tiriie taken oiF and 
 carried away to be painted. 
 
 It would be otherwise if they had been newly pur- 
 chased, and brought into the house, but not yet 
 attached or fitted to it. (40 Vt., 233.) 
 
 Lightning rods also go with the house ; a fur- 
 nace in the cellar (4 E. D. Smith 275. 39 Conn. 
 862.) is also considered a part of tVie house, but an 
 ordinary stove with loose pipe running into the 
 chimney is not. (24 Wend. 191.) while a range set 
 in brick work is. (7 Mass 432.) 
 
 Mantel pieces so attached to the chimney as 
 cannot be removed without marring the plastering 
 'go with the house, but if merely resting on brackets 
 they may be taken away by their former owner with- 
 out legal liability. (102 Mass 517.) 
 
 The pumps, sinks, etc., fastened to the building 
 are a part of it in law. (99 Mass. 457.) and so are 
 the water pipes connected therewith, bringing water 
 from a distant spring. (97 Mass. 133.) 
 
 If the farmer has iron kettles set in brick- work 
 near his barn, for cooking food for his stock or other 
 similar uses, the deed of his farm covers them also 
 (10 Pick. 314), as likewise a bell attached to the 
 barn to call men from work. (102 Mass. 514.) 
 
 Ornamental statues, vases, etc., resting on the 
 ground by their own weight merely, and sells his 
 estate without reservation, these things go with the 
 land. (12 K Y. 170.) 
 
 17 
 
FAEMERS' RIGHTS IF THE ROAD. 
 
 CHAPTEK VI, . 
 
 If a farm deed is bounded bj- or upon the road, 
 it usually extends to the middle of the roadway ; the 
 farmer owns the soil of half the road, and may use the 
 grass, trees, stones, gravel, sand, or anything of 
 value to him, either on the gro.und or beneath the 
 surface, subject only to the superior rights of the 
 public to travel over the road, and that of the offi- 
 cers of the highways to use such material for the 
 repair of the road, and these materials he may cart 
 away and use elsewhere on the road. 
 
 No other man has a right to feed his cattle there 
 or cut the grass or ti-ees, much less to deposit his 
 wood or other things thereon. (8 Met. 576; 8 Allen, 
 473, 1 Pa. St. 336. 
 
 The owner of a drove of cattle which stops to 
 feed in front of your land, or of a drove of pigs 
 which root up the soil is responsible to you at law 
 as much as if they did the same thing inside of the 
 fence. Nobody's children have a right to pick up 
 the apples under your trees, although the same stand 
 wholly outside of your fence. No private person 
 has a right to cut or lop of the limbs of your trees 
 in the road in order to move his barn or other build- 
 ings (4 Cush. 487.), and no traveller can hitch his 
 horse to your trees in the sidewalk without being 
 liable if he gnaws the bark or in any other way in- 
 jures them. (54 Me. 460.) 
 
 i8 
 
If your well Manda partly on your land and 
 partly outside the fence, no neighbor can use it un- 
 less by your consent; nay, more, no man has a right 
 to stand in front of your land and insult you with 
 abusive language, without being liable for trespass- 
 ing on your land. (11 Barb. 339.) 
 
 He has a right to pass ■ and repass in orderly 
 manner, a right to use the road but not to abuse it. 
 But notwithstanding the farmer owns the soil of the 
 road, even he cannot use it for any purpose which 
 interferes with the use of it by the public for 
 travel. He cannot put his pig-pen, wagon, wood or 
 other things there, if the proper highway overseer 
 orders them away as obstructing travel. If he leaves 
 such things outside his fences, and within the limits 
 of the highway as actually lajd out, though some 
 distance from the travelled path, and a traveller runs 
 in them in the night and is injured, the owner is not 
 only liable to him for his private damages (15 Conn. 
 225) but may also be indicted and fined for obstruct- 
 ing the public highway ; and if he has a fence or 
 wall along the highway, he must place it all on his 
 own laud, not half on the road, as in the case of 
 division fences between neighbors, except in New 
 Jersey, it may be set four feet in' the road for pro- 
 tecting hedge plants three years. (4 Gray 215.) 
 
 But as he owns the soil if the road is discon- 
 tinued, or located elsewhere, the land revertfe to him 
 and he may enclose to the centre and use it as a part 
 of his farm. 
 
 19 
 
FARM FENCES. 
 
 CHAPTER VII. 
 
 It was a fundamental principle of the law in 
 some of the old original States that every man must 
 keep his cattle on his dwn laud at his peril. He was 
 liable if they strayed away into other people's 
 grounds. It was necessary, therefore, at common 
 law, that every man should keep a personal watch 
 pver his aniriials or surround his land with a fence. 
 This fence was primarily, therefore, not so much to 
 keep other cattle out as to keep his in ; and so each 
 owner, if he kept cattle, was bound to erect the en- 
 tire fence around his close whether his neighbor 
 kept any cattle or not, and if the latter also owned 
 any he must do the same, or keep them home in 
 some other manner. But as two parallel fences was 
 attended with useless expense, it was long ago pro- 
 vided by statute law that adjoining owners of im- 
 proved lands should maintain partition fences in equal 
 shares, and if they did not agree how the fence 
 should be divided each might apply to the fence 
 viewers or other persons, designated by election or 
 appointment, to decide which half each proprietor 
 should keep up, and if after such decision, either 
 party refusing or neglecting to build or keep in re- 
 pair his portion, the other could do so and recover 
 
the expenses of the delinquent owner by a suit at 
 law. It follows, therefore, that if my adjoining 
 owner does not keep up his part of the fence, and 
 my cattle get through and injure his crops he haS'-v^- • 
 redress against me, since his own neglect contrib- 
 uted to the cause of his injury. But now comes a 
 very important addition to this rule; and this is — 
 if my cattle stray beyond the immediate adjoining 
 land, in the lands of a third party, and injure his 
 crops I am liable for the damage to him, although 
 my own half of my fence is good, and my animals 
 escaped through my immediate neighbor's half of 
 defective fence ; because as to all persons except my 
 adjoining neighbor I -am still bound to keep my ani- 
 mals on my own land, and it avails me not that my 
 neighbor neglected his half of our division fence. 
 Nay, so far is this rule carried, that although such 
 third person did not keep up his own fence, and the 
 cattle go into his land through his own fault, he can 
 still make me pay the damages, because he is not 
 bound in law to keep up any fence at all except as 
 against his nearest neighbor, and not against any 
 cattle further off. In other words, if A, B and C 
 own three adjoining lots, and as cattle stray into B's 
 land through B's neglect he has no remedy against 
 A; but if they stray still further, into the lands of 
 C also, and there do mischief, C has a claim for the 
 damages against A, even though the animals went 
 through his own broken down fence. A must keep 
 his animals home at his own peril for similar rea- 
 
sons; if A turns his cattle into the highway, and 
 they come on to your land from the road, either be- 
 cause your front fence is defective, or altogether, you 
 have a remedy against A for all the damages you 
 sustain, for you are not obliged to have any fence on 
 the road except to keep your own cattle in. A must 
 keep his own cattle at home, and so precise is the 
 rule that if other people roaming over your land 
 hunting, fishing or berrying leave your bars down, 
 by which your cattle escape into the highway -and 
 thence come into my cornfield, you are liable to me 
 for all the damage, although not in fault, if you 
 keep your fence up. (30 JN". H., 143.) 
 
 On the other hand, if you carefully drive your 
 cattle along the highway, and without your fault 
 they break away from your control and run in my 
 adjoining land, and you drive them out as soon as 
 you can yoa are not responsible for the damages 
 done, for you had a right to drive them along the 
 highway with proper care and attention (114 Mass., 
 466), while in the other case they were not law- 
 fully in the highway at all, although the owner was 
 not personally at fault. 
 
 The division fences may be placed one-half on 
 each side of the line, even though ditches be used 
 (2 Met, 180), and both owners have a common in- 
 terest in the whole fence, and they must be kept in 
 good repair throughout the year unless both parties 
 otherwise agree. 
 
It would not be just to make a man whose lands 
 are wild or. not improved, and on which he neither 
 has cattle to stray away and injure others, or grow- 
 ing crops which can be injured by other people's ani- 
 mals, to pay the expenses of building or maintaining 
 a fence which can be of no use to him. Accord- 
 ingly, if one of the adjoining neighbors improve his 
 land he has no right to compel the other to pay any 
 part of the expense of a fence, and if he needs a 
 fence to keep his own animals at home, or for any 
 other purpose, he must build it himself. If, how- 
 ever, A owns a pasture lot along side of B's wood 
 lot the latter is not bound by law to help maintain a 
 fence between them, but if A puts cattle into his 
 pasture he must keep them there as best he can ; so, 
 if both are wood lots the owners are not obliged to 
 erect fences. 
 
 23 
 
farmp:rs' liability foe his animals. 
 
 CHAPTER VIII. 
 
 If a man turns his animals loose into the public 
 highway, and they injure the person or property of 
 another lawfully using the way, the owner is respon- 
 sible for all damages they may do, whether he knew 
 that they had dangerous dispositions or not. (4 
 Allen, 444.) 
 
 He had no right to let his cattle run loose in 
 the public highway. In one instance a man let his 
 horse go out to feed in a public place where some 
 children were playing, and some of them began to 
 switch him, whereupon he turned and kicked one 
 of them so that he died. The owner was convicted 
 of manslaughter ; had he known the animal was 
 dangerous it might have been more severe with him. 
 In the Mosaic law it was declared that if the owner 
 of an ox knew that he pushed with his horns, and 
 did not keep him in, and he killed a man or woman, 
 not only the ox but owner also, was put to death. 
 (Ex. 19-29.) 
 
 Every owner of a dangerous animal, knowing 
 it to be such, is liable for all damages he may do to 
 another, even though the latter is at the time tres- 
 passing on the, farmer's premises (3 E. D. Smith, 
 674). If, therefore, a boy while stealing apples is 
 
loped by a vicious bull into the boughs of the tree, 
 the owner is liable for the damages. But this 
 extreme liability absolutely depends upon the fact 
 whether the owner of the animal had any previous 
 knowledge of the beast's disposition for evil. If so, 
 the mere keeping of such an animal unconfined is 
 itself, in law, deemed culpable negligence. If he 
 did not know the fact some other form of negligence 
 is essential in order to make the owner of the animal 
 liable for his conduct while on the owner's premises, 
 or while lawfully in the highway under the care of 
 a keeper. 
 
 For this reason, if a man's horse runs away in 
 the street and injures some one, or breaks a carriage, 
 the owner is not liable unless he carelessly left him 
 unhitched, or was guilty of some other negligence ; 
 the opinion commonly held to the contrary notwith- 
 standing. 
 
LAWS CONCERNING DOGS. 
 
 CHAPTER IX. 
 
 The question of liability for and protection 
 against dogs has been a perplexing one from earliest 
 times. Owing to the naturally wild and fierce dispo- 
 sition of dogs, it has not been generally thought 
 necessary, in order to make the owner liable, to 
 prove that he actually knew the dog was accustomed 
 to bite, as in the case of other animals. The law 
 presumes that every owner of a dog must keep him 
 on his own premises or sutler the consequence, and 
 so comprehensive is the law that if your dog rushes 
 out into the street and in mere play jumps at a horse's 
 head, causing him to run away, and thereby damage 
 is done, though it amounts to thousands of dollars, 
 the owner of the dog is liable in double the amount, 
 for the owner's liability is not limited to damages 
 from the bite of a dog, but extends to any direct 
 damage however caused (1 Allen, 191); and if your 
 dog is at large, although he is a good-natured New- 
 foundland, and being teased and invited by young 
 children at play, turns upon them and bites one 
 severely, you may be liable to heavy damages, although 
 the dog was never known to bite before (4 Allen, 431). 
 And this is so, although the dog is duly licensed and 
 collared. The object of a dog tax is not to exempt 
 
 ! 26 
 
the owner from liaMlity for all his dog's mischief, 
 but to provide a fund for the remuneration of the 
 farmer, where the owner is not known or was not 
 pecuniarily responsible. But no man is obliged to 
 wait until the mischief is done and then seek re- 
 dress by the law's delay ; you may take the law in 
 your own hands and kill the dog, licensed or not, 
 that suddenly assaults you while peaceably walking 
 or riding in the public streets, and so you may if the 
 dog is found out of the enclosure or care of the 
 owner wounding, worrying or killing any neat 
 cattle, sheep or lambs. If a dog is not licensed, 
 your right to kill him is much broader. The law of 
 Massachusetts says you may kill him " whenever or 
 wherever found," but this does not authorize you to 
 kill him on his owner's premises. 
 
 If you did so you might find out your mistake 
 by being compelled to pay not only the value of the 
 dog but also for unla,wful]y entering another's prem- 
 ises (11 Allen, 151,) (109 Mass., 276). Whenever 
 and wherever found, therefore, doesnot mean ex- 
 actly what it says. Such are the quicks of the law. 
 
 37 
 
WATER RIGHTS AND DRAINAGE. 
 
 CHAPTER X. 
 
 "Water is flowing and fleeting, and the rights of 
 farmers therein are much of the same kind. If a 
 stream of water flows through a farm the owner has 
 a riglit to use any reasonable quantity of it, as it flows 
 along, for watering his stock, irrigating his land, or 
 supplying his house for domestic use, but he must 
 not monopolize the whole of it. His neighbor's 
 cattle must have water also. He may, to some ex- 
 tent, change the course of the brook on his own land, 
 provided he turns it back into the natural channel 
 before it reaches the land below him. He has no 
 right to conduct it into his neighbor's land without 
 his consent at a different place,than where it natur- 
 ally entered therein. He may build fish ponds, or 
 otherwise dam up the stream, provided he does not 
 thereby flow back on the land above him. If 
 he does so he is liable to a suit for trespass, and 
 finally, if he continues it, to an injunction. A farmer 
 has no right to flow another's land without his con- 
 sent as a mill owner has, as the law giving such right 
 upon payment of a fair compensation, applies only to 
 mill-dams and the like, and if your neighbor below 
 you so dams up the stream as to flow back on you, 
 you may enter on his land and take down enough 
 
 28 
 
of the obstruction to relieve your land of the over- 
 flow. So if a natural stream becomes obstructed by 
 leaves, sticks and rubbish, you have a right to go on 
 to the land and move the obstruction, so that the 
 water will flow as freely as before (5 Met., 429), and 
 the natural deposits you may place on the bank of 
 the stream (21 Pick., 341). The same rule prevails 
 as to artificial water, courses or ditches, provided you 
 have acquired a right to have such running through 
 another's lands. But you have not ordinarily such 
 a right unless you or your predecessors have pur- 
 chased the privilege of him, or have enjoyed it so 
 long and under such circumstances as to have there- 
 by gained a prescriptive right as it is called. The 
 right and liabilities of farmers to the surface water 
 are very different from those in running streams. 
 By surface water is meant not only that which comes 
 from falling rain and melting snows, but also that 
 which oozes out of the ground from springs or 
 marshy places and which finds its way over the sur- 
 face, or through the tussocks, but is not gathered into 
 a bed or current like a brook or rivulet. When once 
 collected into a stream with bod and banks, it loses 
 its character as a surface water and becomes subject 
 to different rules. But so long as it is only surface 
 water any man on whose laud it is has a right to 
 detain and use the whole of it on his own land and 
 for his own purpose, and is not bound to let any 
 portion of it flow on to the land below. On the 
 other hand, he may turn the whole of it on the 
 
 29 
 
premises below him, whether grass-lands or culti- 
 vated fields, and even though it be a serious injury 
 to such neighbor (120 Mass., 99), if the latter wishes 
 to protect himself he must build up some embank- 
 ment at the edge of his land and stop the flow, as he 
 has a perfect right to do, although he thereby makes 
 quite a pond above and injures the crops there. And 
 as the farmer may turn the surface from his own 
 land into yours without being liable, so a highway 
 overseer may conduct the road work on you, even 
 though it sweeps sand and gravel into your meadows. 
 As to underground water, the law does not recog- 
 nize any right of ownership therein ; you may dig 
 down on your own premises and cut off his well 
 supply, and he has no remedy against you (18 Pick., 
 117). 
 
 3° 
 
TRESPASSING ON" LANDS. 
 
 CHAPTER XI. 
 
 The general rules concerning trespassing on 
 other lands are pretty well understood generally, hut 
 on one point at least there is some times erroneous 
 ideas. Many think that if a party simply crosses 
 your land for twenty years he thereby always ac- 
 quires a right to continue- the practice, but this is far 
 from universally true. The very foundation of ac- 
 quiring such a right — prescriptive, as it is called — 
 is that the crossing must have been adversely to the 
 land owner, contrary to his wishes, or at least with- 
 out permission expressed or implied, and under a 
 claim of legal right so to do, whether the farmer is 
 willing or not. If, therefore, the person crossing 
 does so with the permission or by the mere indul- 
 gence of the land owner, and not under any claim 
 of legal right, it is wholly immaterial how long the 
 custom has'continued. 
 
 Forty years travel, by consent of the owner, 
 would not give any right to continue to pass after 
 forbidden by the owner so to do. 
 
 To avoid any misapprehension in such cases it 
 is wise for the farmer to put up notices forbidding 
 it, as we often see done. And this notice not only 
 
 31 
 
makes it clear that thencefoi-ward the intruder is a 
 trespasser, but by a recent law in Massachusetts he is 
 also made liable to a fine of twenty dollars ($5.00 in 
 Maine) for wilfully crossing or entering upon any 
 garden or orchard, mowing lands or other improved 
 land between the first day of April and the first day 
 of December (St. 1876, e. 181). By this law the 
 willful trespassing on such lands during the summer 
 months is made a crime. But as to all other seasons 
 of year, or as to any other kind of lands, such a 
 trespass is only civil trespass, not a crime, and the 
 onlj' remedy is an action for the damages. If, how- 
 ever, a man's object in coming into your premises 
 is to steal your fruit, cranberries or other crops, that 
 of itself is a crime, although he does not accomplish 
 his purpose, and you may put him out by force, 
 after notice to leave, using no unnecessary violence. 
 But cannot lawfully set spring guns or man traps, 
 or other instruments which may do him bodily in- 
 jury without giving notice of such hidden dangers. 
 (4 Prif., 628 ; 37 Iowa, 613.) You have no right to 
 inflict bodily injury to a boy even while stealing 
 your apples, or kill your neighbor's hens while 
 scratching up your garden seeds (14 Conn., 1 ; 107 
 Mass., 406) ; but in New Jersey a hog may be killed 
 while trespassing on your premises. (Nixon's D. N. 
 J. S.) One of the most annoying forms of trespass 
 to the farmer is that of fishing and hunting. Many 
 persons seem to think that, by some general custom 
 or otherwise, they have a right to hunt or fish over 
 
 32 
 
another's lands as they please, but this is quite erro- 
 neous. (Pick., 145.) 
 
 In all ordinary streams and ponds the right to 
 fish belongs solely to the party owning the adjoining 
 land. If the stream is navigable — that is, if the tide 
 ebbs and flows — the public have a right to boat up 
 and down it, and to fish from their boats, but not to 
 go on shore to do it ; and by a very early law in 
 'New England if a farm contained a great pond, i. e., 
 a pond over ten acres, the public had a right of fish- 
 ing and rowing there, and might pass and repass ou 
 foot through any man's property for that end, so 
 they trespassed not on any man's corn or meadows. 
 Recent laws authorizing Fish Commissioners to 
 lease large ponds to private parties may modify the 
 former rights of the public therein. 
 
 As to salt water fishing, the law is somewhat 
 peculiar, for although the owner of upland ordi- 
 narily owns the land down to low-water mark, as 
 before stated in chapter 4, yet any other person may 
 go there and dig clams or other shell fish (not 
 planted) if he can do so by water and without cross- 
 ing the upland in going and returning. (8 Gush., 
 347; 7 Gray, 440.) 
 
 Legislatures may sometimes abridge or modify 
 this right, but the ordinary rule is as here stated. 
 The question often arises, who owns the fruit of a 
 tree standing near the boundary line between two 
 proprietors. It is generally supposed that the fruit 
 on the limbs overhanging one's land belongs to him. 
 
but this is a mistake. If a tree stands wholly on 
 your land, although some of the roots extend into 
 the soil of your neighbor and draw support and 
 nourishment from its soil, he has no right to any of 
 the fruit which hangs over the line fence (11 Conn., 
 177 ; 38 Qt., 105 ; 25 N. Y., 126), and if he attempts 
 by force to prevent you from picking it he is liable 
 for an assault and battery. (46 Bart, 337; 48 K 
 Y., 201.) 
 
 In one instance a woman, while standing on the 
 fence picking cherries which hung over the line, was 
 forbidden to do so by the adjoining owner, who was 
 at work in his garden, and in the scuffle to prevent 
 her she received some bruises on her arm, for which 
 he was fined $1000. If your fruit falls into your 
 neighbor's lot you have a right to go on his premises 
 and pick it up, doing him no uaavoidable damage. 
 (113 Mass., 376; 12 Qt., 273.) If, however, a fruit 
 tree stands directly in the division line, and is what 
 is called a line tree, but the parties own the tree and 
 the fruit in common, and neither can cut it down or 
 seriously injure it without being liable to the other. 
 (12 K H., 454; 34 Bost., 547 ; 25 K Y., 123;) 
 
 Sornetimes persons are tempted to poison or in 
 some other way secretly kill a neighbor's tree, which 
 may stand near a fence and casts a painful shade on 
 their garden or hide their view in the street ; but this 
 is dangerous business, and the party doing so may 
 find himself in the clutches of the law and be made 
 to pay heavy damages, and possibly go to jail in the 
 
 34 
 
bargain. The safer way would be in such a case to 
 cut off the limbs which hang over your side of the 
 fence, which you have an undoubted right to do, but 
 make no use of the limbs so cut oft lest you have to 
 pay their value to the owner of the tree. 
 
 Merely crossing your lots to hunt and fish is not 
 always a detriment, though it sometimes is ; and to 
 traverse your farm on a bee hunt often does no harm 
 whatever. It is just because these various trespasses 
 strike so near the border of innocence that makes it 
 impossible in any particular case to characterize 
 them. 
 
 If you do not single one out as a special offense 
 the injury will not be considered presumptive, but 
 must be proved. But the subject of bee-hunting 
 demands a special consideration from the fact that 
 a good many individuals are strongly impressed by a 
 notion that a certain right inheres in the mere dis- 
 covery ot wild bees, no matter where they are, which 
 is paramount to every other right that comes in con- 
 flict with it. The truth, however, is quite otherwise 
 than this, as the legal discussions on the subject are 
 clear and unmistakable. Bees are animals termed 
 by the law (except where they have been domesti- 
 cated), /erffi Jtaiur^. (See 2 Blackstone's Commen- 
 taries, 392.) In the case of Pierson agt. Post (3 
 Caine's Reports, 175), decided by the New York 
 Supreme Court in 1805, the law applicable to ani- 
 mals, /er«e naiurce, was settled, and has not been 
 questioned since. The substance of this case is fairly- 
 
 35 
 
stated in the head-note, as follows : Pursuit alive 
 gives no property in animals feroB naturae, therefore 
 an action will not lie against a man for killing and 
 taking one pursued by, and in the view of the per- 
 son who originally found, started, chased it and was 
 on the point of seizing it. Occupancy in wild ani- 
 mals can be acquired only by possession. Again in 
 Gillet agt. Mason (7 John E., 16) : " Tinding a tree 
 on the land^of another containing a swarm of bees, 
 and marking the tree with the initial of the finder's 
 name does not vest in the finder any right of prop- 
 erty in the bees." In Ferguson agt. Miller (1 
 Cowen E., 243) it is said: "Wild bees in a bee 
 tree belonging to the owner of the soil where the 
 tree stands," and the s-ime ownership is asserted of 
 the honey. 
 
 A case is difierent (Goff agt. Kilts, 15 Wend., 
 550) where the owner of bees — that is, a person who 
 has reduced them to possession, has hived them and 
 kept them, and the bees then swarm out and go into 
 a tree. In such case, if the owner follows them, 
 keeps them in sight, and traces them to a lodgment 
 in a tree, although it stand on the land of another, 
 he will still own the bees. But, remember, the 
 owner ot the bees cannot, even in this case, cut or 
 injure the trees, nor can he even enter upon the 
 land without being liable for trespass. 
 
 36 
 
HIRING FARM LABOR. 
 
 CHAPTER XII. 
 
 After taking possession of the tarm, one of the 
 ffrst, and generally the most trying duties of the 
 farmer is to hire his help. 
 
 Every employer of labor knows full well that if 
 a man is hired without any special bargain as to the 
 price, he is entitled to the current rate of wages for 
 such labor and no more ; but every laborer may not 
 be aware that if he engages to work for a year, but 
 leaves without good cause at the end of eleven 
 months, he is not entitled to any compensation for 
 what he has done, but forfeits the whole, and this is 
 so whether he has agreed to stay for the entire year 
 at one round sum or for a given price per month. 
 (12 Met. 286:) although, if the farmer had paid lor 
 each month's work as it became due, he could not 
 properly recover it back, even if the laborer after- 
 ward wrongfully left him before his time expired, 
 (17 Qt. 355, 1 Gush. 279), and if he has given a note 
 for the amount already earned he must pay the note 
 notwithstanding the subsequent failure of the other 
 party to work out his time. (13 Johns 53.) 
 
 But if nothing has been paid and no note given 
 the laborer would not only forfeit his wages, but 
 
 37 
 
would also be liable to pay the employer for any 
 damages done him by leaving him without notice 
 at a critical time in the year. If he quits for higher 
 wages and should get $40 per month while he lyas 
 to have but $20, the farmer may hire a man in his 
 place and make his wages $40. He may be mf.de to 
 pay the extra $20 per month for the balance of the 
 unexpired engagement, as damages for his breach of 
 contract, and the laborer could not set off against, 
 the claim of the employer the value of the work 
 he had really done and not been paid for. (4 Wend. 
 605.) And this is so, whatever specific thing you 
 hire a man to do. If he engages to build you a barn 
 for five hundred dollars, or to lay up a hundred feet 
 of stone wall for a dollar a, foot, or dig a well twenty 
 feet deep for twenty dollars, and voluntarily quits 
 without good cause when the job is half done, you 
 are not obliged to pay a cent for what he did do. 
 (2 Mass. 147, 11 Gray 396), although, if he had sub- 
 stantially completed it in good faith he would not 
 lose all his labor because in some minute particulars, 
 he had not finished it exactly according to precise 
 terms of the contract, (7 Pick 185, 9 Allen 355.) 
 On the other hand, if the laborer has good cause for 
 leaving he may do so, and compel the employer to 
 pay for the time he actually did work, and among ' 
 the well-known excuses for quitting • before the ex- 
 piration of the time, are sickness of the hired man 
 or his physical inability to labor (11 Met. 440) or 
 the prevalence of some dangerous and contagious 
 
 38 
 
epidemic in the family or in the vicinity, which 
 might render it hazardous far the man to remain 
 (443 Me. 463), and improper treatment by the em- 
 ployer, as scarcity of food, is also deemed sufficient 
 excuse for seeking other quarters. And even though 
 the laborer so misbehaves himself that he is arrested 
 and imprisoned for some crime, and so is busy pick- 
 ing oakum for the county in the house of correction, 
 this is considered a legal excuse for not attending to 
 his farm duties, and he can make the farmer pay for 
 V7hat time he spent in his employ before he went 
 into the public service. (11 Allen, 201.) It has 
 been thought that harsh language by the employer 
 to his employee would not justify him in leaving be- 
 fore the stipulated was out. (27 Qt. 645.) In one 
 instance a farmer asked his hired man to feed 
 and water his stock on Sunday morning. The man 
 said he would not do it; the employer told him to 
 " go to hell, but to mind and first work out his 
 time." Instead of following the directions, the 
 laborer went to a lawyer and sued for his wages up 
 to that time, but it was held he was not entitled to 
 anything. (1 Wend. 515.) Had the master request- 
 ed him to do any unnecessary or unlawful work on a 
 , Sunday it would probably be a good excuse for his 
 leaving (8 Conn. 14 ; 1 Bowne 29) but necessary 
 farm work, such as care of live animals, may un- 
 doubtedly be required on Sunday. (16 Jur. 549. 6 
 Dunl. 1256.) But inasmuch as it is always a ques- 
 tion for a jury to decide whether the man had good 
 
 39 
 
cause to leave (14 Gray 454), their sympathies are 
 very apt to be with the employed; they usually think 
 the laborer worthy of his hire. The cheaper way 
 generally in such cases is if the amount be not large, 
 to pay the man and let him go, and never hire him 
 again. What we have stated before about a forfeit- 
 ure ot wage^ is founded upon the doctrine that the 
 laborer has made an entire contract, and that he 
 must faithfully fulfill it, or he is entitled to no pay ; 
 therefore, if for any reason this entire contract is not 
 valid and binding on the laborer, he may disregard 
 it entirely and quit when he likes, and still recover 
 for all the time he makes. 
 
 For this reason if the bargain is to work for 
 more than one year, or even for just a year, but to 
 commence at some future day, as a week after mak- 
 ing the bargain, and the contract is not written 
 dotvn and signed, which but few apprehend ever to 
 think of doing, it is not binding on the laborer, and 
 he can break it at his pleasure, and still make the 
 former pay, (5 Gray, 41.) In like manner if the la- 
 borer is under twenty-one he is not bound by his 
 bargain, but may desert when he pleases (2 Pick. 
 332; 19 Pick. 572) and recover back pay. And this 
 is so, although the young man appears to be of age 
 or is married and has a family (37 Qt. 647 ; 41 N. H. 
 346) or even though he falsely stated he was over 
 age, and able and willing to make as good a bargain 
 as if half a century old. (11 Gush. 40 ; 10 N. H. 
 184.) But even if you have a nominal remedy 
 
 4° 
 
against a laborer who has left you unjustifiably in 
 the midst of this contract, this so often proves prac- 
 tically worthless, that the law also gives you a right 
 of redress against the person who enticed him away 
 with the offer of better wages, or otherwise. 
 
 The law doea not allow one man to interfere 
 with another man's business without being liable to 
 pay for all damages caused thereby to the party 
 whose men are thus induced to break their contract 
 with their former employer (107 Mass. 655; 5t) N. H. 
 456.) 
 
 It is for this reason that combinations among 
 workmen for a strike, and to induce fellow workmen 
 by intimidation or otherwise to forsake their em- 
 ployers, are clearly illegal, and render the parties 
 involved liable both civilly and criminal!}'. Such 
 associations are more common among operatives 
 than farm laborers, but it is supposed the fule 
 applies in either case. 
 
FARMERS' LIABILITY FOR THE ACTS OF 
 HIS LABORERS. 
 
 CHAPTER XIII. 
 
 The liability of a farmer for his men many 
 times proves extremely erroneous ; as a general rule 
 he is liable for all the injury they do while actually 
 in his employ doing his. business ; therefore if you 
 send a boy to burn old brush, and the lad leaves hie 
 work and goes away to play with other boys and the 
 fire runs into the next field and consumes the crops 
 or fence of your neighbor, you must pay damages, 
 although you told him to watch it carefully and hot 
 leave it a moment ( 5G:ilm., 500 ; 7 Cush., 385). 
 
 If you send a load of farm produce into town, 
 and the driver falls into a doze and runs into another 
 team, you must pay for injury done. 
 
 If your man in going to or from the hay field 
 carelessly swings his scythe and cuts au ugly gash 
 in the leg of a passerby you had better settle as 
 well as you can for the injury. If in cutting your 
 wood a man accidentally cuts over the line on your 
 neighbor's lot you are responsible, although you 
 told him where the line was (23 Mich., 298). And 
 though your man shows a touch ot maliciousness in 
 his act done in the prosecution of your business, 
 and intentionally runs into another team which 
 somewhat obstructs his way while driving your load, 
 
 42 
 
jou cannot screen yourself behind his unnecessary 
 and willful violation of your orders (12 Allen, 49; 
 114 Mass., 518; 109 Mass., 154). Of course in 
 another case you cannot compel the servant to repay 
 you all the expenses he had thus caused you by his 
 misconduct (63 Me., 177; 43 Conu., 244). On the 
 other hand to make you thus responsible for his 
 carelessness he must have been at the very time on 
 your business. 
 
 If he borrows your horse and wagon and goes 
 off on a pleasure or business of his own and runs 
 over somebody you are not responsible, merely 
 because it Avas your horse and wagon (26 Penn St., 
 482). Much leps would the master be liable if the ' 
 servant took his team without his knowledge on 
 pleasure or business of his own (4 Daly, 388). How 
 it would be if the fellow was on his own business 
 and yours too, is a nice question which might 
 puzzle a " Philadelphia lawyer." 
 
 Tn one instance once a farmer let his man his 
 team to' go to town for a holiday, and asked him to 
 stop' at the butcher shop on his way home and bring 
 along a piece of meat. While fulfilling this order the 
 man took a little too much "whisky," and on his 
 way home ran over an old woman in the public 
 highway, but the master was considered not respons- 
 ible. This, however, was in the courts of the 
 Emerald Isle. (9 Quish, L. R, 557). 
 
 One more distinction on this subject it may 
 be well for you to know, and that is, that although 
 
 43 
 
an employer is held responsible tor any careless in- 
 jury his men may do to third persons, he is not re- 
 sponsible for any such injury to other fellow-work- 
 men. If his man, therefore, by the very same 
 act of negligence injures a co-laborer and also 
 a bystander, the latter would have redress against 
 the master, and the other not, for bj' some 
 species of rather artificial reasoning a man when 
 hiring out is supposed in law to have anticipated 
 any direct injury from the carelessness of his co- 
 laborers, and taking the risk on himself, but not to 
 his wife (112 Mass., 234), whatever the rate of wages. 
 But, on the other hand, he is presumed to have con- 
 templated any negligence on the part of his em- 
 ployer; and, therefore, he has a remedy against him 
 for his own personal carelessness, or in providing 
 dangerous or insufficient machinery or apparatus, 
 or even in hiring notoriously incompetent or habit- 
 ually careless men. 
 
 In one instance an employer was compelled to 
 pay two hundred dollars to his hired man, who fell 
 into a barrel of hot water set in the ground and 
 carelessly left uncovered, but which the man did 
 not know of (111 Mass., 322), and this last rule 
 should probably render the employer liable for any 
 injury to his servants from dangerous or vicious 
 animals intrusted to them to take care of, at least if 
 the owner knew of ther character, and the men did 
 not. 
 
 44 
 
FIRES, LIABILITY FOR SETTHSTG, ETC. 
 
 CHAPTER XIV. 
 
 If a careless hunter fires your woods, and the 
 flames spread to your fields and run along your 
 fences to your barn, he is responsible for the whole 
 loss, although he did his best to stay its progress. 
 A man who wrongfully sets in operation a danger- 
 ous instrument, must take all the consequences 
 directly caused thereby (21 Pick., 378 ; 43 Cal., 437 ; 
 2 Harr., 443), and this would be so, whether the fire 
 ran along the ground continually, or whether the 
 sparks were blown through the air a considerable 
 distance and then set fire to some person's property 
 (107 Mass., 494). But as any farmer has a legal 
 right to burn the brush, old stumps, etc., on his own 
 land, if he does so at a proper time and in a proper 
 manner; he is not responsible, if by a sudden rise 
 of the Avind or other cause, without negligence on 
 his part, the fire is accidentally communicated to 
 a neighbor's premises, and causes him serious in- 
 jury. The gist of his liability in such cases is in 
 some carelessness, either in the time of setting the 
 fire, or in the manner of doing so, or in watching it 
 afterwards, and the man who suffers is bound to 
 
 45 
 
make it cleai' that the other was to blame (54 Me., 
 259, 22 Barb. 619"; 44 Barb. 424; 18 Me., 32; 11 
 Met, 460.) But eveii your negligence will not 
 always render you liable for the spread, of a fire un- 
 less it was originally kindled by you intentionally ; 
 therelore, if your barn takes fire through your care- 
 lessness with the lantern, or that of your man with 
 his pipe, and thereby your neighbor's property is 
 also consumed, you are not bound to pay for it; the 
 law seems to consider that you have suffered enough 
 for your conduct in the loss ot your own property. 
 (1 BI. Conn., 431; 37 Barb., 15 ; 35 N. Y., 210 ; 62 
 Penn. St, 353.) 
 
 Still less would you be responsible if the fire 
 originated from causes beyond your control. If your 
 barn is struck by lightning, or your hay stack ig- 
 nites spontaneously, without any fault on your part, 
 and the fiames spread to the adjoining owners' prop- 
 erty it would be hard indeed if you had not only to 
 lose your own, but to pay for his also (8 Johns 422; 
 Q. B. 347,) and even if you were careless in not 
 promptly and energetically putting it out when you 
 could have done so, and it spreads beyond your con- 
 trol, this would not render you liable, as perhaps it 
 might have done had you purposely set fire to your 
 bush heap or stubble. 
 
 As to railroad fires the laws are somewhat dif- 
 ferent in the different States, but in these general 
 features, or principles, are substantially the same. 
 Formerly, and antecedently to any statutes railroad 
 
 46 
 
companies were not liable for fires caused by their 
 locomotives, without proof of some negligence, 
 either in the construction or mode of running the 
 engine by which the fire was caused (5 H. & N". 674; 
 18 Barb. 8fi ; 30 Iowa 420 ; 15 Conn. 124; 3 Me.^ 
 93) but as the liability to stich fires was so great, and 
 the amount of damages so caused was very exten- 
 sive, it became necessary to enlarge their liability ; 
 and now in Massachusetts by General stat. (Chap. 63. 
 p. 101) railroad corporation are liable for all damages 
 to the buidiugs or personal property of land owners 
 along the route arising from fire communicated by 
 their locomotives, and without any proof of negli- 
 gence or carelessness, either in the company or any 
 of its employees. 
 
 And this statute has a liberal construction, ex- 
 tending not only to buildings immediately adjoining 
 the railroad, and which are fired directly by sparks 
 from the locomotives, but also to buildings at a long 
 distance from the road, and which are set on fire 
 through the air from some other building nearer by, 
 which had first been set on fire (18 Met. 99; 93 
 Mass. 414 ; 103 Mass. 586). 
 
 47 
 
WAYS OVER THE FAEM : HOW ACQUIRED. 
 
 CHAPTER XV. 
 
 Others may acquire a right of way over your 
 farm in either of three modes : 1st, By purchase or 
 grant from you ; 2d, By long continued use or pre- 
 scription ; 3d, By actual necessity. As the first 
 method, to gain a permanent right by purchase or 
 grant, it must have been by a regular and complete 
 deed, executed in the same way as a deed of the land 
 itself. If the bargain was only oral, or if it was even 
 in some simple writing but not in a formal deed 
 under seal, it would, even though fully paid for, be 
 revocable — a mere license, as it is called, and may 
 be terminated at the risk of the land-owner, by 
 notice to the other party to use it no longer. Being 
 a kind of interest in, the strict law requires it to be 
 conveyed by deed (2 Gray 302, 2 Allen 578 ; 2d. 
 Theisecond mode, by prescription, requires length of 
 time, twenty years at least ; and the way must have 
 been used continually, peacefully, and under a claim 
 of right to do so, and not by your permission or 
 consent. If it was only very rarely used, if it was 
 not peacefuly used, but against your protest, or if 
 used by your tacit consent, the use would not ripen 
 into a legal right, however long continued (8 Gray 
 
 48 
 
441 ; 11 Gray 148), and if used under all those con- 
 ditions it must have been iu some regular and 
 uniform place. No man can gain a right by such 
 means to wander over your farm just where he has a 
 mind to or where his convenience suits him ; that 
 would be an intolerable burden to the farmer (5 
 Pick. 485). 
 
 To gain this right by twenty years' use it is not 
 necessary that any one owner should have travelled 
 it twenty years. 
 
 If successive owners have unitedly used it for 
 that period, it would be sufficient, so far as length of 
 time is concerned (2 Allen, 277). And if this pre- 
 scriptive right of way was gained only by using it for 
 some particular purpose, as for carting wood irom 
 a wood lot beyond, that would not authorize the 
 person to continue to use it for all purposes, after 
 the wood had been all cut off, and it had been cov- 
 ered over with buildings (11 Gray, 150; 15 Gray, 
 387). Third. The third mode, by necessity, arises 
 when you sell a man a back lot, with no means for 
 him to get to any highway except over your remain- 
 ing land ; the law gives him a right to cross your 
 land to and fro ; otherwise his land would be use- 
 less. 
 
 At present he cannot reach it by balloon to any 
 practicable purpose, and therefore he must cross 
 your land. So if you well a man all of your front 
 land, retaining the back part, and have no way out 
 except to cross the lot you sold, though your deed 
 
 49 
 
in such a case says nothing about it ; and this is so 
 even if in your deed you warrant the land free and 
 clear from all encumbrances (4 Gray, 297). It is a 
 familiar maxim that necessity knows no law. But 
 this right of way by necessity continues only so long 
 as the necessity continues, and if a highway is after- 
 wards laid out touching the back land on the other 
 side, or if the owner afterwards buys a lot adjoining 
 it, and between it and a highway he can no longer 
 cross over your land as before, but must go out the 
 other way (14 Gray, 126). And so long as he does 
 have such a right, he must go in such a place as you 
 designate, if it be a reasonable place., [f you mark 
 out .a road or a way along the fence, or on the poorer 
 ground, he must confine himself to that. (2 Pick. 
 478.) 
 
 And if the way becomes miry or out of repair, 
 he must keep it good it he wants to use it. Your 
 duty is done when you allow him' to cross ; you are 
 not obliged to smooth his pathway for him (12 
 Mass., 69). But if you actually obstruct his usual 
 road, or it becomes suddenly impassable by natural 
 causes, he would have a right to drive to one side 
 until he has opportunity to remove the obstruction. 
 (2 Allen, 546.) All such rights of way are apt to be 
 nuisances to the farmer, and not infrequently lead 
 to litigation 
 
 It is important to know that, in whatever mode 
 a right of way is acquired over your land, you have 
 ordinarily a right, in the absence of any stipulations 
 
 5° 
 
to the contrary, to erect suitable gates or bars at the 
 entrance thereto from the highway ; and if the other 
 party leaves them open, and cattle get in, or yours 
 get out, he is liable to you for the damage done (9 
 Mour, 21 ; 22 Iowa, 161; 44 N". H., 539 ; 45 Md.. 
 357). 
 
WAERANTY OF SEEDS .AND TREES. 
 
 CHAPTER XVI. 
 
 The disappointment resulting from the purchase 
 of seeds is now well settled that if a dealer in seeds 
 sells you an article marked and put up under a cer- 
 tain name, and it is so billed to the purchaser, this 
 amounts to an absolute warranty or guarantee that 
 the seeds are what they are represented to be, and 
 if they turn out not to be the farmer has a remedy 
 against the seller for the money he paid for the seed ; 
 and this is so, although the seedsman was honest in 
 the sale, and bought them for exactly what he sold 
 them for, and he would have a remedy back on the 
 person who sold to him. (18 P. B. 560.) 
 
 But merely to recover back the money paid for 
 the seed would fall far short of the loss to the buyer ; 
 his time, labor, fertilizers, profits on his crops are all 
 gone, and the question has been much agitated 
 whether the seedsman is liable for all this loss ; and 
 it is generally admitted when he either expressly 
 warrants the seed to be a particular kind or variety, 
 or when he so sells it without any reservation or 
 limitation, and thus creates an implied warranty, he 
 is liable for all the damages directly following from 
 the farmer's use of the seed. 
 
 53 
 
In one instance a market gardener bought of a 
 seedsman early strap leafed red top turnip seed, but 
 which proved to be Russia late, not salable in mar- 
 ket, and only fit for cattle, and he was allowed to 
 recover of the seller the difference between the value 
 of the crop which was raised and a crop of early 
 turnips on the same soil, even though the seedsman 
 honestly thought the seed was as represented. (7 
 Wyom. 262 ; 9 Id. 496 ; 34 K Y. 634.) 
 
 And in case the farmer is so imposed upon, and 
 the seeds prove entirely worthless and his crop is ot 
 no value, he can make the seedsman pay not only 
 the cost of the seed, but also all the labor incurred 
 and the fair profit he would have had from the crop 
 had the seeds been what the}' were represented to 
 be. (69 N. Y. 62.) 
 
 To avoid this serious difficulty and liability 
 seedsmen at the present day very often- print upon 
 their seed packages that they do not warrant any 
 seed they sell, which perhaps relieves them from re- 
 sponsibility, unless they knew the seed was not true 
 to name. 
 
 S3 
 
GENERAL CONTENTS. 
 
 Chapter I. 
 
 Agreements and Contracts 3 
 
 Chapter II. 
 
 Fraudulent Contracts 7 
 
 Chapter III. 
 
 Purchase and Sale of Farms. . 10 
 
 Chapter IV. 
 
 Boundaries of a Farm. .. 12 
 
 Chapter V. 
 
 What is Included in a Deed 15 
 
 Chapter VI. 
 
 Farmers' Rights in the Roads 18 
 
 Chapter VII. 
 
 Division and Road Fences 20 
 
 Chapter VIII. 
 
 Farmers* Liability for His Animals 24 
 
 Chapter IX. 
 
 Laws Concerning Dogs 26 
 
 Chapter X. 
 
 Water Rights and Drainage 28 
 
 Chapter XI. 
 
 Trespassing on Lands 31 
 
 Chapter XII. , 
 
 Hiring Farm Laborers 37 
 
 Chapter XIII. ' 
 
 Farmers' Liability for His Help 42 
 
 Chapter XIV. 
 
 Fires, Liability for Setting, ^tc . 45 
 
 Chapter XV. 
 
 Ways Over the Farm, How Acquired 48 
 
 Chapter ^VI. 
 
 Warranty of Seeds. Damages for if Not as Repre- 
 sented 52 
 
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