mtt Collcse ot agriculture m Cornell UniberSitp 3ti)ata, iBt. P- Eibrarp Date Due gMnwor't ;'^v '• X fcLjaY 1 1 1978 I ' Library Bureau Cat. No. 1137 Cornell University Library The original of tliis 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/cu31 92401 3859651 FAEM LAW: A TREATISE ON The Legal Rights and Liabilities OF FARMERS. CONTAIWrtfG AETICLES UPON SUCH SUBJECTS AS THE FOLIiO"WTNG: How to Buy a Farm: How Far the Farm Extends; "What a Deed of a Farm Includes; Hiring Help; Rights in the Road; "Ways Over the Farm; As to Farm Fences; Impoxmding Cattle; Farmer'a Liability for his Animals: Dogs; LiabiUty for his Men; About Fires; Water Rights and Drainage; Tres- passing on the Farm; Overhanging Trees; vrith copious -Index. ADAPTED TO THE STATUTES OF ALL THE STATES. By EDMUND H. BENNETT, ll.d., Dean of Boston University School of Law; and Formerly a Member of the Masa. Board of Agriculture. PORTLAND, ME.: HOYT, FOGG & DONHAM. NEW YORK : OBANGE JUDD CO. OOPTBIGHTBD 1880, BY HOTT, FOGG & DONHAM. PRESS OF B. THURSTON & 00., POKTIiA^ID, ME. NOTICE. The substance of tlie following pages was original- ly delirered as a lecture before the Massachusetts State Board of Agriculture, at Hingham, Dec. 5, 1878, which may account for its familiar style. The present publishers thought that with some additions, referring to the laws of other States, it might be of general interest and value, and it is therefore now republished in the present form. A table of con- tents and a full index has also been added. 3 CONTENTS. CHAITCER I. HOW TO BUT A FAEM 7 CHAPTER n. HOW FAE THE FARM EXTENDS 12 CHAPTER ni. WHAT A DEED OF A FAEM INCLUDES 19 CHAPTER IV. HIEING HELP 24 CHAPTER V. EIGHTS IN THE EOAD 31 CHAPTER VI. WAYS OVEE THE FAEM 35 CHAPTER VII. EAILEOADS THROUGH FAEMS 39 CHAPTER Vni. AS TO FAEM FENCES 45 5 6 CONTENTS. CHAPTEE IX. IMPOUNDING CATTLE 65 . CHAPTEB X. PABMEE'S ANIMAiS 69 CHAPXEE XI. ABOUT DOOS 66 CHAPTER Xn. LIABILITY FOR HIS MEN 73 CHAPTER Xin. ABOUT FIEES 77 CHAPTER XTV". WATEE EIGHTS AND DRAINAGE 80 CHAPTER XV. TRESPASSING ON THE FARM , . . 85 CHAPTER XVI. OVERHANGING TREES 93 CHAPTER XVU. BEWARE OP TRAPS 96 CHAPTER I. HOW TO BUY A FAEiH. In an article upon the legal rights and duties of farmers, the first inquiry natu- rally is, how to buy a farm. It is quite generally known that a mere oral bargain for a farm is not binding in law upon either party ; but it may not be so well understood that an offer to sell a farm for a giyen price, even though it be by letter or other similar writing, is not binding upon the proposer until actually accepted by the buyer, and he has also agreed to take it, and pay the price stated in the offer ; therefore the owner may re- tract his offer to sell at any time before it is accepted and he is notified thereof. 12 johns. 190. And although, in making his offer to sell, * "^°'™*' ^^^' he should expressly give you a certain number of days in which to decide wheth- er to take it or not, he may, nevertheless, change his mind in the mean time, if you have not accepted, and sell to another who offers a higher price, even before the given 7 8 FAEM LAW. time has expired ; and you would have no ct*btf ws. l^g^l redress for your disappointment. Nay, more ; although you had fully made up your mind to take the farm, but had not notified the owner of that fact, and should go to great trouble and ex- pense in buying stock, tools, agricultural implements, etc., to carry on the farm, and should even move your family there to take possession, the owner might even then refuse to sell, and you would have no legal remedy either to compel him to convey, or for the expenses you had thus incurred relying upon his keeping his 46N.T.467. word. In some states, although the bar- gain for a farm be oral, yet if the purchas- er has paid part of the price, and has taken possession and incurred expense in mak- ing improvements, a court of equity will compel the owner to make a conveyance, of Frauds! as he Ought to do without such compul- sion ; but this may not be universally so, and is always an expensive and dilatory remedy ; the safer way in such cases is to take a lond for a deed, as it is called. An ordinary "refusal" of property, as it is termed, is a dangerous thing to rely upon, unless you are dealing with a man whose "word is as good as his bond," and they are very scarce ! And, if a particular time is given you in which to accept an offer to HOW TO BUY A FAKM. £ sell, you should be particular to signify your acceptance strictly within the time, and to do so entirely unconditionally and ^^ ^^^ ^^ without any qualifications, but exactly as ^ n*' jf^kq. it was made. In one instance a man had ^^• ten days in which to make up his mind, and on the night of the last day, about half-past eleven at night, he called at the owner's house, after he was abed and asleep, and said he would take the farra. The owner refused to get up, or to 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 on the last day, and he not only lost his trade, but had to pay the costs of his suit. ^^ ^'=8' 309. In another case A wrote to B he would sell him his farm for three thousand dol- lars cash. B wrote back immediately he wotdd take it, if A would make out his deed and send it to a lawyer for examina- tion, and, if all right, the lawyer would pay him his three thousand dollars ; but it was decided that B had not duly accepted A's offer, because he did not enclose the cash in his letter, but asked A to carry his deed to a third person for examination, and consequently that A might withdraw and sell to another party. 53 Me. 511. If the negotiations for a farm_ are by letters, some peculiar- complications may arise. 10 • FAEM LAW. It is generally understood that when a man offers to sell another a farm by letter, the bargain is completely closed the mo- ment the other deposits his letter of ac- ceptance in his post-office, duly directed to the former. After that time neither party is at liberty to change his mind or retract his steps. And this is said to be so although the letter miscarmes, or the mail is robbed, 11 N. T. 441. s-ikI so the seller never hears that his prop- tS'Div.m osition has been accepted at all. If therefore, in such a case, tired of waiting for a reply, he shoxild sell the farm in good faith to another, the first party might sue him for non-fulfillment of his contract with him, and perhaps compel him to pay heavy damages. Whereas, if he should refuse to convey the farm to the second purchaser, after he had learned that the first wished to claim it, the last might also bring suit, and so the poor man is literally "between two fires." This seems very strange, but I fear such is the generally established rule. As the law- yers say ; ita lex scripta est. If it be so, it is, like some other things written, "hard to be understood!" Another singular sit- uation might arise from the principle above stated. Suppose the would-be buyer changes his mind immediately after his letter of acceptance, has been sent off, and HOW TO BUT A FAKM. 11 telegraphs the owner that he declines to take the farm, and then his letter of accept- ance arrives the next day, what then, — can the owner hold him to take it? But, supposing the grantor is willing to give you a deed, it must, in many states, have the seal of the grantor attached, or it is not sufficient. A scroll of the pen, or the letters L. S., are sufficient in some states, but it is always safe to have a seal. It may not be as well understood that it is not everywhere necessary that a deed should be witnessed or acknowledged, and 12 Met. 157. recorded. These last two requisites may ee Me. 226. be essential to make the deed valid against the creditors of the grantor, or any one who subsequently bought the farm with- out knowing of the prior deed ; and they are always so important they should never be neglected ; and my first advice to you is, that, if you have any unrecorded deeds among your papers, you attend to that duty forthwith. CHAPTER II. HOW PAH THE FABM EXTENDS. Having once obtained: a sufficient deed, the next question seems to be how far the farm extends, or its proper boundaries. Three circumstances have more or less weight in determining this question : 1 The number of acres stated in the deed ; 2 The length of the boundary lines run- ning around the farm ; 3 The visible monuments, such as trees, rocks, stake and stones, 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 lines are described as begin- ning 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 includes all the land inside 2 story, 278. ' of thosc monumcuts, although it be many 29Ind 674. xi t j ?^ -i. j ' uiu. 279. more acres than the deed calls it, and, on the other hand, it will really convey no 12 HOW FAR THE FAKM BXTEIJDS. 13 more, although the number of acres with- in such bounds be much less than stated in the deed. So, if the monuments named are fixed and definite, they control the length of the side-lines mentioned in the deed; and if these lines be called a hun- dred feet long on every side, but the trees, rocks, stake and stones described as cor- ners, are only ninety feet apart, the buyer will acquire a lot' only ninety feet square, and not a hundred feet; and, vice versa, if the lines are described as only ninety feet long, but the given corners are a hun- dred feet from each other, the deed covers ,,^ ' 6 Mass. 13. a lot a hundred feet sq uare. ^ n. h 303. J- 8 Wend. 190. The quantity of acres mentioned is the very weakest means of knowing the real extent of the farm, although they be stated positively, and not under the elas- tic phrase of "more or less," as is so com- monly done; and, generally speaking, a deficiency in ntimber of acres gives the buyer no remedy against 'the seller for a 19 pi(,i5_ dgT, return of any part of the purchase money, 5 ^'ais.' 365.' unless, perhaps, when it was clearly bought at the rate of so much per acre. 27 Gratt. 721. In one case the bargain was for a well-de- fined tract, followed by the words " con- taining 600 acres." In fact, it contained only 421 acres, but the buyer had no re- dress for the difference. So much more 2 johna 37. 2 14 TAEM LAW. 9 N. T. 183. important are the known monuments and boundaries ' tlian tlie number of acres stated, that, even if the vendor fraudu- lently and intentionally overstates the quantity, in order to deceive the purchaser, the latter has no redress, if so be the oth- ^Auen^2i2^^' ®^ truly pointed out the boundaries in making the trade ; whereas, a fraudulent statement of the boundaries would release the purchaser from the sale, although the farm contained as many, or even more acres, than the parties called it in making the bargain. And, while speaking of fraudulent statements, perhaps I ought to warn you that fraudulent misrepresentations by the seller of a farm, as to how much hay or wood it will cut, how much stock it will keep, how much it had cost, or how much somebody else had offered for it, though made with intention to deceive you into a foolish trade, are not in law sufficient to excuse you from the pur- chase, or give you any redress, when you find out the deception. Such and other similar statements are considered in law merely as " dealer's talk," which, though not to be commended in the code of mor- als, the law takes little or no notice of. On the other hand, if he should falsely state that the farm had cut fifty tons of 2 Allen, 212. 6 Allen, 324. 8 Allen, 334. 102 Mass. 217. 63 Me. 12. 106 Mass. 79, 56 N. Y. S3. HOW PAR THE FARM EXTENDS. 15 hay, when he knew it had not, his decep- tion would make him liable ; and the line 46n. k. eio. is so thin between actionable fraud and the contrary, that experiments in that di- rection are rather dangerous. It is not- wholesome to always dwell in the twilight. If a boundary line runs to a tree, rock, stump, or other similar object, it ordinari- ly goes to the center of the object ; if it is Alien, ue. runs by a wall or fence, it passes along the middle of it, and not by the side, which, in a " Virginia fence," or a ditch six feet wide, might be of some conse- i^oif^wo!' quence. That such a fence, six or seven feet wide, is a lawful fence, see Ferris v. Van Buskirk. So if the farm bounds by or on a brook, river, stream, etc., it usually extends to ^ ^^^^ 471^ the middle of the current; not always to le Me. 245, 357. the middle of the water, but generally to I §! h.^sm. the thread of the stream, — ad filum aquce. If there be any islands between that cen- ter line and the bank, they belong to the 40 n. h. 190. owner of the main bank. If an island forms in the bed of an unnavigable river, directly in the channel, so as to lie partly on each side of the original thread of the river, such island will be divided between the opposite proprietors, exactly upon the line of the former thread of the stream at „ pj^^ ^j, that place. 16 FARM LAW. 9 CuBh. 544. 9 Gray, 269. 7 Allen, 167. 54 N. y.377. 9 N. H. 461. Whereas, if the course of such a river changes, and cuts off a point of land on one side, thus making an island, such is- land still belongs to the original proprie- tor ; and in such case, if the old bed of the river, being gradually deserted by the current, fills up, and new land is formed, such newly formed land is to be divided between the opposite owners, as above stated, notwithstanding the island formed by the "cut-off" is not divided. 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 ordinarily owns to the center of the current : on the other hand, if it 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 rights in such large bodies of water as are useful for naviga- tion, boating, sailing, and the like. As to farms bounding on the seashore, some different provisions exist in some states. That strip of land between high and low water mark, generally termed "the flats," is a frequent subject of contention; and the question is often made to whom it belongs, — whether to the owner of the up- land, or to the public. In many states the HOW FAB THE FABM EXTENDS. 17 private ownership in such farms extends only to "highwater mark," and the pub- lic have rights in the belt between high and low water mark, so that if sea-weed, or other such thing be thrown up there by the tide, any one may take possession of it, and he who first gathers it has an ab- 9 conn. 38. solute right to it. By force of a very ear- 3 scam! 510! ly law in Massachusetts, and some other sea-coast states, 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 includes the whole flats down to low-wa- ter mark (if not over a hundred rods), 7 ci^jf Ib.^^^' including the exclusive right to gather the 34Me.*25. sea-weed, or other such things washed up ?? N.V.^Ik thereon by the tide. And no custom 7 Met'. 322'. among the people in the neighborhood to collect sea-weed in such places, is of any validity in law. 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 dees not give any right to the flats. is^G^ayfl^. 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 low-water mark, flats and all. 7 Cnsh. 195. In view of such nice and subtle distinc- 2* 18 PAEM LAW. tions (though, founded on better reasons than are apparent), one is tempted to ex- claim with the Earl of Warwick, in Shakespeare's Henry VI. : — " Between two hawks, which flies the higher pitch; Between two dogs, which hath the deeper mouth ; Between two horses, which doth bear him best; Between two girls, which hath the merriest eye ; I have, perhaps, some shallow spirit of judgment,— But in these nice sharp quillets of the law, Good faith, I am no wiser than a daw." CHAPTER III. WHAT A DEED OE A FAEM IKCLTJDES. Oe course every one knows it conveys 4 lowa, i46. „ , „ T. IP 1 43N. H. 306. all the lences standing on the larm ; butiN.Y.ees. all might not think it also included the fencing-stuff, posts, rails, etc., which had once been used in the fence, but had been taken down and piled up for future use again in the same place. But new fenc- fd^a'ie^' ing material, just bought, and never at- le iii. 48o. tached to the soil, would not pass. So 2 sclm. 283. piles of hop-poles stored away, if once used on the land, have been considered a part of it ; but loose boards or scaffold- 1 Keman, 123. poles merely laid across the beams of the barn, and never fastened to it, would not be, and the seller of the farm might take them away. Standing trees, of course, 1 Lans. 219. also pass as part of the land ; so do trees blown or cut down, and still left in the 54 Me 309 woods where they fell, but not if cut, and corded up for sale ; the wood has then be- come personal property. j^ ^^.^ ^3j_ If there be any manure in the barnyard, 19 20 FAEM LAW. 13 Gray, 93. 3 N. H. 603. 2 Hill, 142. 36 Vt. 261. 68 Me. 275. 11 Conn. 62B. 43 Tt. 95. 64 Me. 410. 21 Pick. 367. 6 Greenl. 222. 15 Wend. 169. 24 Md. 418. 44 N. H. 118. 68 Me. 204. 17 Penn. St. 262. 7 Watta, 378. 68 ni. 106. 20 Mich. 254. 19 Pick. 315. 46 BaA. 278. 22 N. H. 638. 39 111. 28. 41 111. 467. 6 Eng. 9. 9 Conn. 374. or in a compost-heap on tlie field, ready for immediate use, the buyer ordinarily, in the absence of any contrary agreement, takes that also as belonging to the farm, though it might not be so, if the owner had previously sold it to some other party, and had collected it together in a heap by itself, for such an act might be a technical severance from the soil, and so convert real into personal estate ; and even a lessee of a farm could not take away the manure made on the place while he was in occu- pation. Growing crops also pass by the deed of a 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 effect would not be, in most states, valid in law. Another mode is to stipu- late that possession is not to be given un- til some future day, in which case the crops or manure may be removed before that time. As to the buildings on the farm, though generally mentioned in the deed, it is not absolutely necessary they should be. A deed of land ordinarily carries all the buildings on it belonging to the grantor, whether mentioned or not ; and this rule includes the lumber and tunber of any old buUding which has been taken down, or WHAT A DEED OF A FARM IKCLUDES. 21 blo"vm down, and been packed away for *J ^i^ennflt future use on the farm. 23La.An.284. But if there be any temporary build- ings on the farm built by some third per- son, with the farmer's consent that they should belong to the builder, as between the parties these are personal property ; 38 n. h. 431. and some think the deed would not convey 121 Mass. 659. these, since such buildings are personal property, and do not really belong to the land-owner to convey. If that be so, the real owner thereof might move them off, although the purchaser of the farm sup- posed he was buying and paying for all the buildings on it. His only remedy in such case would be against the party sell- ing the premises. But some courts decide 10 mT^s. that the honest buyer of the farm would take all the buildings on it, and if they did not iustly belong to the seller, the 123 Mass. , . 1 • j; J? n 38N. H. 432. real owner must sue hun tor wrongiully 51 Me. leo. selling his property. As part of the build- ings conveyed, of course the window- blinds are included, even if they be at the time taken off, and carried to a paint- er's shop to be painted : it would be oth- erwise if they had been newly purchased and brought into the house, but not yet attached or fitted to it. Lightning-rods «> vt. 233. also go with the house, if a farmer is fool- 22 FARM LAW. ish enougli to be overcome by those smooth-tongued lightning-rod agents. * fjsf ■ ^™"'' A brick furnace in the cellar is consid- 75 m. 385. gj.g(j g^ p^j.^ q£ ^jjg house ; some think oth- erwise as to portable furnaces, but this may not be everywhere so. An ordinary 39 Conn. 362. stovc, with a loosc pipe running into the ifwe^d. 191. chimney, is not, while a range or grate set 7 Mass. 432. in brick-work is. Mantel-pieces so at- 33 N. H, 104. ^ T T ^ ^, , . . . n 2 B. & c. 76. tached to the chimney as not to be re- moved without marring the plastering, go with the house ; but, if merely resting on brackets, they may be taken away by the 102 Mass. 517. former owner without legal liability. I 127 Mass. 125. am inclined to believe that a deed of a 403. ■ ■ house does not include the gas-fixtures 40 Mo. 91. ■ therein, and it is generally understood, that, if a lessee puts in his own gas-fix- tures, he may remove them when his lease i nSses.'^' expires. The pumps, sinks, etc., fastened 99 Mass. 457. to the building, are a part of it in law, and so are the water-pipes connected there- 97 Mass. 133. with, bringing water from a distant spring, A wooden cistern in the cellar, standing on blocks of wood, probably falls within 40 Me. 310. the same rule. If the farmer has iron ket- tles set in brick-work, near liis barn, for cooking food for his stock, or other similar uses, the deed of his farm covers them al- io Pick. sh. so, as likewise a bell attached to his barn, WHAT A DEED OP A FAEM INCLUDES. 23 to call his men to dinner. A cider-mill gg cSf'se.^*' goes with the apple-orchard, and not with last year's crop of apples. If he has a n n. h. eo4. cattle-barn on the premises, the tie-up planks, stanchion-timbers, tie-chains, and hinge-hooks used for fastening the animals in their stalls, belong to the barn, and not to the cattle. If the farmer indulges in^iN.n.sis. ornamental statues, Tases, etc., permanent- ly erected, and resting on the ground by their own weight merely, and sells his es- tate without reservation, these things go with the land. But even this might not ^^^•■^•"'*- be so, if the article had just arrived, and never been placed or fitted to its position 17 n. h. 282. on the lawn. The same rules apply to mortgages of a farm, as to absolute deeds of it ; with one additional important considera- tion, viz., any additions or permanent im- provements upon the land after the mort- gage is given, belong to the land, and go with it, so that if the farmer, after mort- gaging his farm, erects a new barn, or oth- er out-biuldings, but fails to pay the mort- gage debt, and the mortgagee forecloses, the owner will lose the whole, new and old, though it be twice the value of the whole mortgage debt. CHAPTER IV. HTRLNG HJ]LP. Aptbe taking possession of the farm, one of the first, and often one of 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 labor- er may not be aware that if he engages to work "for a year," but leaves without 2 Pick. 287. good cause at the end of eleven months, 8 Cow. 63. he is not, in most states, legally entitled 34 Me. 102. . ' o •/ 34 Mo! 79. ' to any compensation for what he has done, 19 vt. 603. ' but forfeits the whole : and this is so, 39 Wise. 553. , , , i , r ,^ whether he has agreed to stay tor the en- tire year at one round sum, or for a year 19 j^otos^m at the rate of twenty dollars a month ; al- though, if the farmer had paid for each month's work as it came due, he could not probably recover it back, even if the la- borer afterward wrongfully left him before i cldiff79. his time was out. And, if he has given a 24 HIKING HELP. 25 note for the amoixnt already earned, lie must pay the note, notwithstanding the subsequent failure of the other party to work out his full time. But if nothing ^| ^."^".'sf- has been paid, and no note given, the la- borer would not only forfeit his wages, but also would be liable to pay the employer for any damage done him by leaving him without help at a critical time in the year ; therefore, if he has agreed to work a year for twenty dollars a month, and quits just before haying because he can get forty dollars at mowing for some one else, and the farmer has to pay that price to get an- other man to supply his place, he can re- " cover of the laborer the extra twenty dol- lars a month for the balance of the unex- pired engagement, as damages caused him by such breaking of the contract; and the laborer could not set off against the claim of the employer the value of the work he had really done, and ngt been paid for. And this is so, whatever specif- * ^end. eos. . T_ . T_ . j_ 1 Tj' 1 12 Johns. 166. 10 tmng you hire a man to do. If he en- is Johns. 94. gages to build you a barn for five hundred dollars, to lay up a hundred feet of stone wall for a dollar a foot, or dig a well twen- ty feet deep for twenty-five dollars, and voluntarily quits without good excuse when the job is half done, you are not obliged to pay a single cent for what he 3 26 TAEM LAW. 2 Mass. 147. 11 Gray, 396. 7 Pick. 181. 9 Allen, 365. 20 Conn. 312. Me. 632. 31 Vt. 162. 11 Met. 440. 25 Conn. 188. 22 Me. 631. 20 N. Y. 197. 21 Wise. 396. 11 Vt. 567. 43 Me. 463. did do ; although, if he had substantially completed it in good faith, he would not lose all his labor because, in some minute particulars, he had not finished it exactly ac- cording to the precise terms of the contract. If a farm laborer so conducts himself as to justify his discharge before his time has expired, it may be he would not forfeit all his wages (as when he ToluntarUy quits without cause), but might recover whatev- er his services were really worth to the farmer. 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 leaving before the original bargain contemplated, are sick- ness of the hired man, or his physical inar bility to labor, or the prevalence of some dangerous epidemic in the family or in the vicinity, which might render it hazardous for the man to remain ; such as cholera, small-pox, and the like. Any improper treatment by the employer, as scarcity of suitable food, is also deemed sufficient ex- cuse for seeking other quarters. And even though the laborer so misbe- haves himself that he is arrested and im- prisoned for some crime, and so is busy picking oakum for the county in the house HIBING HELP. 27 of correction, this is considered a legal excuse for not attending to his farm du- ties, and he can make the farmer pay for what he did do before he involuntarily went into the public service. nAUen,2oi. It has been thought that merely harsh language by the employer to his employe would not justify him in leaving before his stipulated time was out. In one in- 27 vt. 645. stance the farmer asked his hired man to water and feed the cattle one Sunday morning. The man said he wouldn't do it : the employer told him to " go to hell, but to mind and work his time out first." Instead of following the directions, the la- borer went to a lawyer's office, and sued for his wages up to that time, but was held not entitled to any thing. Had the mas- 1 Wend. 515. ter required him to do any unnecessary or unlawful work on a Sunday, it would prob- ably have been a good excuse for his leav- , . J. 11 8 Conn. 14. mg ; but necessary tarm-work, such as care 1 Browne, 29. of live animals, may undoubtedly be re- quired on Sunday. And any work done on 6 cuni. 1256. Sundays, ordinarily comes under the regu- lar contract, and not as extra work. 4Kan3. iss. Difficulty with another laborer is not a good excuse for leaving without permis- 19 vt. sos. sion; but it is always a- question for the jury to decide whether the man had good cause for leaving, and their 14 Gray, 454. 28 PAUM LAW. 6 Gray, 41. 10 ( oiin. 246. 3 Hill, 128. 27 Ala. 187. 2 Pick. 332. 19 Pick. 572. 17 Me. 38. 18 Conn. 337. 2B N. H. 82. 3 Denio. 375. 58 Me. 217. 37 Vt 647. 41 N. H. 346. sympathies being with the person em- ployed, they usually think the labor- er is worthy of his hire. The cheaper way generally in such cases is, if the amoiint is not large, to pay the man, let him go, and never hire him again. What we have before stated about a for- feiture of wages, is founded upon the doc- trine that the laborer has made an entire contract for a time not exceeding one year, and that he must faithfully ful- fill it, or he is entitled to no pay : there- fore, 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 did work. For this reason, if the bar- gain 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 making the bargain, and the contract is not writ- ten down and signed (which nobody ever thinks of doing), it is not binding oji the laborer, and he can break it from a mere whim, and still make the farmer pay. In like manner, if the laborer is under twen- ty-one, he is not bound by his bargain, but may desert when he pleases, and recover " back pay." And this is so, although the young man appears to be of age, or is mar- ried and has a family, or even though he HIEIKG HELP. 29 falsely stated he was over age, and able and willing to make as good a bargain as if half a century old. lo n"h.' m Laborers sometimes make a contract Hs.'&k; 399. that if either party is dissatisfied, the con- tract may be terminated. Under such cir- cumstances, he may leave when he pleases, whether he had any good reason to be dis- satisfied or not. Svt'i?' But even if you have a nominal rem- edy against a laborer who has left you unjustifiably in the midst of his contract, this so often proves practically worthless, that the law also gives you a right of re- dress against the person who has enticed him away with the offer of better wages, or otherwise. Of course one farmer has a right to offer inducements to a laborer to leave his present employer, when his time is out, or if he is only employed from day to day, and under no legal obligation to remain longer, but enticing him away j^^^%_ during his contract is quite another matter. The ^aw does not allow one man thus to interfere with another man's business without being liable to pay for all the in- convenience and loss he may thereby cause to the person whose men are thus induced to break their contract with their former I'^'^J'^^-J^^- ao N. U. 456. employer. fc^ow^i^!'- It is for this reason that combinations 3* 30 FAEM LAW. among workmen for a strike, and to induce fellow-workmen, by intimidation or other- wise, to forsake their employers, are clear- 106 Mass. 1. ly illegal, and render the parties involved liable both civilly and criminally. Such associations are more common among op- eratives than farm-laborers ; but probably the same rules apply to both. A few years since, in Nebraska, a num- ber of laborers conspired together to quit work simultaneously, and return the arti- cles they were at work upon, in an unfin- ished and worthless condition. They did so, but they were obliged to pay several 9 Neb, 390. hiindred dollars damages to their employer. CHAPTER V. EIGHTS IN THE BOAD. If a farm deed is bounded by, on, or upon a road, it usually extends to the 2 waii. es. middle of the roadway. There are a few stn.'y. 251. exceptional cases ; but ordinarily the farm- er owns the soil of half the road, and may use the grass, trees, stones, gravel, sand, or any thing of value to him, either on the land, or beneath the surface, subject only to the superior rights of the public to trav- el over the road, and that of the highway surveyor, or other similar officer, to use such materials for the repair of the road ; and these materials he may cart away^ and use elsewhere on the road, but he has no 1 j^ ^ ig_ right to use them for his own private pur- ^^Mi^iii^^' poses. No other man has a right to feed ^^ '^'""'- '^''• his cattle there, or cut the grass or trees ; iclw.'fas. much less deposit his wood, old carts, s Met. 576. wagons, or other things thereon ; and after 1 Penn.'st. 336. notice to the owner, the farmer may remove them to some suitable place, and if they are lost or injured it is not his fault. 12 Met- 53. 31 32 FAUM LA-W. The owner of a drove of cattle whicli stops to feed in front of your land, or of a drove of pigs whicli root up the soil, is respon- sible to you at law as much as if they did 16 Mass. 33. the Same things inside the fence. No person's children have a legal right to pick up the apples under your trees, although the same stand wholly outside of the fence. No private person has a right to cut orlop off the limbs of your trees in order to move his old barn or other buildings along 4 Gush. 437. J.1 1 . -u 1 'i? j.i_ J? 97 Mass. 472. the highway; and even it the owner oi the building has a license from the proper authorities to move the same through the streets, this does not ex- empt him from liability to private suf- ferers. And no traveler can hitch his horse to your trees in the sidewalk, with- out being liable if he gnaws the bark or otherwise injures them ; and you may un- tie the horse, and remove him to some safe B4Me,46o. place. If your well stands partly on your land, and partly outside the fence, no neighbor can use it, except by your per- mission. Nay, more : no man has a right to stand in front of your land, and whit- tle or deface your fence, throw stones at your dog, or insult you with abusive lan- guage, without being liable to you for tres- u Barb. 390. Passing on your land ; he has a right to pass and repass in an orderly and becom- EIGHTS IN THE KOAD. 33 ing manner, — a right to use the road, but not to abuse it. One judge thought that if a stroll- ing musician stops in front of a house, and plays a tune, or sings an obscene song under the window, he would be lia- ble as a trespasser on the road. It ought ii Barb. 398, to be so, any way. In one case, a man stopped in the highway, in front of a house, and used Tulgar, obscene and pro- fane language in the hearing of the in- mates of the house, and it was decided that the man of the house had a right to put a stop to such annoyance, even by the use of force. son.c. 351. Perhaps it may be well to state here, that, if the highway becomes suddenly im- passable by heavy snows or deep gullies, a traveler may turn aside into your adjoin- ing land, without being liable as a tres- ^ ^^^ ^q3_ passer, if he does no unnecessary injury, ^tario.'e^s*.'''^" 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, wagons, wood, or other things there, if the highway surveyor or- ders them away as obstructing public trav- el. If he leaves such things outside his fence, and vdthin the limits of the high- way as actually laid out (even though 34 FAEM LAW. some distance from the traveled path), and a traveler runs into them in the night, and is injured, the owner is not only liable to 15 Conn. 225. Tn'Tp for private damages, but may also be indicted and fined for obstructing a pub- lic way. And, if he have a fence or wall along the highway, he must place it all on his own land, and not half on the road, as in case of division fences between neigh- 4 Gray, 215. bors. And such front fsnce must end on each man's own line. One man has not a right to put the terminal post of his front fence partly on his neighbor's land, the iLana. 79. Same being no part of a division fence. But, as he owns the soil, if the road is dis- continued, or located elsewhere, the land reverts to him, and he may enclose it to the center, and use it as a part of his farm. CHAPTER VI. WAYS OVEE THE FAKM. Others may acquire a right of way over your farm, in either one of three modes : 1 By purchase or grant from you. 2 By long-continued use, or prescription. 3 By actual necessity. As to the first method, to gain a perma- nent 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 even if it was in some simple written paper, but not in a formal deed under seal, it would, even though fully paid for, be in law revocable, — a mere license as it is called, — and might be terminated, at the mere wish of the land-owner, by a notice to the other party to use it no longer. | ^jj^y- ^oa. Being a kind of interest in land, the strict t5^art*'^i62 law requires it to be conveyed by a deed. f^%Sfln 2 The second mode, by prescription, re- quires length of time, — generally twenty years, but in some states, only fifteen ; 35 36 FAEM LAW. 8 Gray, 441. 11 Gray, 148. 5 Pick. 485. 44 Vt. 166. 2 Allen, 543. 66 N. Y. 145. 19 Vt. 164. 3 Day, 268. 31 Conn. 531. 11 Gray, 150. 15 Gray, 387. 1 Ch. DiT. se and tlie way must have been used contin- uously, peaceably, 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 peaceably used, but against your protest, or if used by your tacit con- sent, the use would not ripen into a legal right, however long continued. And, if used under all those conditions, it must have been in 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 con- venience suits him. That would be an intolerable burden to the farmer. To gain this right by twenty years' use, it is not necessary that any one owner should have traveled 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. And if tliis prescriptive right of way was gained only by using it for some particular pur- pose, as for carting wood from a wood-lot beyond, that would not authorize the per- son to continue to use it for all purposes, after the wood had been all cut off, and 2. the lot covered over with buildings. 8 The third mode, by necessity, arises when you sell a man a back lot, with no means for him to get to any highway ex- WAYS OVER THE FARM. 37 cept over your remaining land. The law gives him a right to cross your land to and fro ; otherwise, his land would be useless. At present he can't reach it by balloon to 2? n! h'. «8. any practicable purpose, and therefore he ^\ki!°°' ^'' , 1 J o -r 11 19 Wend. 507. must cross your land, bo, 11 you sell a 4 Bush, 317, man all your front land, retaining the back part, and have no way out except over the part sold, you retain a right to cross the lot sold, though your deed in such case gg j^ jj 3Q5_ says nothing about it ; and this is so, even g^cSh.^ili if in your deed you warrant the land to be free and clear from all incumbrances. 4 Gray, 297. It is a familiar maxim that " necessity knows no law." But right of ways by necessity continue only so long as the necessity itself con- tinues ; and if a highway is afterward laid out, touching the back land on the other side, or if the owner of such back lot afterward buys a lot adjoining it, and between it and a highway, he can no long- er cross over your land as before, but must is Conn'. 321.' 47 N H 230 go out the other way. And so long as he 29Tasr78. does have such a right, he must go in such a place as you designate, if it be a rea- sonable place. If you mark out a road or a way along the fence, or on the poorer ground, he should confine himself to that. 2 Pick. 578. If you neglect to do so, probably he may then locate his own way, but must do so ia 4 38 FABM LAW. 12 Mass. 69. 75N.Y.474. 8 Pick. 339. 2 Allen, 546. 9 B. Monr. 21 22 Iowa, 161. 44 N. H. 539. 31 N. T. 366. 4 Lans 64. 47 N. H. 301. 45Md.357. a " reasonable manner," and where it will do you no unnecessary damage. He has not a right always to take the " shortest cut " across your land, whatever it may be. Neither has he the right to keep changing his route, and so cut your land all up with his wheel-ruts. And, if the way becomes miry or out of repair, he must keep it in good condition if 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, and rake out the sticks and stones. But if you actually obstruct his usual road, and perhaps if it becomes suddenly im- passable by natural causes, he would have a right to deviate to one side until he has opportunity to remove the obstructions or make repairs. All such rights of way are apt to be nuisances to the farmer, and not unfre- quently lead to litigation. It is important to know, that, in what- ever mode a right of way is acquired over your land, you have ordinarily a right, in the absence of any stipulation to the con- trary, to erect suitable gates or bars at the entrances thereto from the highway ; and if the other party leave them open, and cattle get in, or yours get out, he is liable to you for the damage which ensues. CHAPTER VII. EAILEOADS THEOUGH FARMS. Many farms, now-a-days, especially in the valleys, have one or more railroads crossing them ; and as such roads are not generally acceptable to the farmer, it be- comes interesting to know the legal liabil- ities and rights of the company and the land owner. In the first place, railroad companies do not generally acquire the fee in any land they take by law for their road-bed, but only an easement, or right to maintain their road there, with all necessary inci- dental rights thereto. If the farmer gives the company a deed of the land, of course they have the same absolute ownership as any other purchaser would have. And in i2n!'1!'i2i. some states this may be so when the land is seized and condemned by the railroad company, contrary to the will of the own- er; but usually the fee of the land re- mains in the person from whom it was taken. The exclusive rights of property 39 40 FAEM LAW. in the land, and in the trees and herbage 28 vt.^87^^^' upon its surface, and the minerals below 11 il™; it' it) belongs to him, and the company have 42^Aia. (N. s.), Qj^Yj ^ rigiit of way over the surface. If any stranger, therefore, should take and carry away any such things from the strip of land taken for the road, he would be liable to the adjacent land owner for so doing. But owing to the peculiar char- acter of railways, and the necessity for an exclusive use and occupation of the road by the company, the land owner might not have, as against the company, a right to enter ad libitum, and cut and carry away 42 vt 265 what was growing thereon, or remove the fZifm. soil, turf, etc. And of course the company have a right to cut down, and remove, any trees, build- ings, or other objects withia their author- ized location, which may at any time in- terfere with their use and operation of 10 cnsh. 6. t^e road. It may seem singular that a railroad company, a corporation organized only for private profit, should have a legal right to take the best of a man's land without his consent, and subject him to the annoy- ances necessarily incident to such a use of his property; but it is quite universally established that the legislature have a right to grant railroad companies such powers, RAILEOADS THEOTTGH PAEMS. 41 mainly because, thougli the direct object of the stockholders in building a railroad is pecuniary profit, yet being built, it be- comes a great public highway — artificial highway — on which every one has a right to travel, upon complvinsr with the terms Eedfieid on 1 1- • • Tn -,1 T> Eailways, vol. and conditions sanctioned by the law. ±5e- 1, chap. xi. ing, however, a power contrary to com- mon right, it is to be strictly construed, and not extended beyond the necessity of the case ; and railroad companies do not have a right to seize and take all the land they may happen to want, but only what they actually need for operating their road. They would have no right to seize and take possession of land wholly outside of their location, merely for the purpose of speculation and profit. In some states, also, the land lawfully taken must be actually paid for, before the company has any right to even take pos- session ; while in others, they have a right of immediate possession, leaving the dam- ages to be paid for afterward, as the par- ties may agree, or a legal tribunal determine. The ultimate fee of the road-bed there- fore, generally remaining in the former owner, if the road is discontinued, or the location entirely changed and abandoned, all land taken by law reverts to the for- mer owner, and he may re-occupy the same. 42 »Anu LAW. And as the fee is all the time in him, if he sell a part of his farm, on one side of a railroad, and bounds it by the road, the grantee acquires a right in the fee to the center of the road, as in cases of deeds along highways, etc. Such being the respective interests of land owner and raUroad company in the bed of the road, the next question is, as to the fences along this narrow belt of land. Obviously, the fences ought to be erected and maintained by the railroad company, or the land owner ought to be compensated for the expense of doing so himself. Accordingly, as the more simple mode of settling the question, it is now generally provided by statute, that railroad companies shall do all the fencing, on both sides, and ever afterward maintain them. And where that is so, the company is lia- ble for any injury to the adjoining owner's Eedfieia on Cattle or beasts which stray on to the road, j^^ir^Sviii!' ^^^ ^^6 there killed or injured by passing 35'N^H!^169; trains, whether there is, or is not, any neg- 5 Sill. ligence in running the trains But where there is no positive law re- quiring the company to fence, the duty of keeping one's animals off the road is on the owner of the animals, and if they stray upon the road, and are injured, the com- EAILEOADS THUOTJGH: JAEMS. 43 pany is not liable -unless guilty of negli- lafiwlys?" i, gence in running the train. * ^^^- ^^'^"' And even wlteretlie law actually re- quires tke railroad company to keep up the fences, that applies only to cattle be- longing to the adjoining owners, or law- fully on their lands, by their permission. It does not apply to cattle of third per- sons remotely situated, that have strayed away, and wandered on to the railroad, and then killed. In such cases the com- pany is not responsible for any defects in their own fence, but only in case they have negligently run down the beasts. ^^ifas^B. eS.™" These are the general principles- ap- plicable to this subject, but it is so much controlled by local statutes and decisions, that it would be impracticable and confus- ing to discuss it further here. Another important question arising about railroads, is their liability for fires, communicated by their passing locomo- tives to the woods, pastures, or buildings of farmers along the route. Primarily, a rail- road company is not liable for fires, un- less caused by some negligence or careless- ness of their employes. Formerly, and an- tecedently to any statutes, railroad compa- nies were not liable for fires caused by their locomotives, without proof of some negli- gence, either in the construction or mode 44 B'ARM LAW. BH. &N.674. 18 Batb. 80. 80 Iowa, 420, 15 Conn. 124. 37 Me. 93. 31 Ind. 143. 33 Iowa, 187. 60 Mo. 227. 4 Neb. 263. 6 Allen, 87. 8 Allen, 438. 121 Mass. 134. 13 Met. 99. 98 Mass. 414 103 Mass. 686. of running the engine, by wliicli the fire "was caused, or otherwise. But as the li- ability to such fires was so great, and the amount of damage so caused was very ex- tensive, it became necessary to enlarge their liability ; and now in some states, by statute, railroad corporations are liable for all damages to the buildings or personal property of land-owners along their route, arising from fire communicated by their locomotives, and without any proof of negligence or carelessness, either in the company or any of its employes. This seems to be the law in Massachusetts. And this statute has a very liberal con- struction, extending not only to buildings immediately adjoining the railroads, 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 by sparks flying through the air from some building nearer by, which had first taken fire from the engine. As a protection to themselves, however, railroad companies are authorized to get the property along the route insured for their benefit ; so that, if obliged to pay, they may remunerate themselves, and thus the burden is more equally divided. Dif- ferent states may have difEerent statutes upon this subject. CHAPTER VIII. AS TO TAEM FENCES. It was a fundamental principle of our law (though the contrary exists in many of the United States), that every man must keep his cattle on his own land 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 over his animals, or surround his land with a fence. This fence was primarily, there- fore, not to keep other people's cattle out, but to keep his own in : and so any land- owner, if he kept cattle, was bound to erect the entire 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 his beasts at g j^asg, 94^ home in some other way. This was the ^ vt.'^t law in Massachusetts, Maine,. Vermont, 1 dw.'if.' New Hampshire, New York, Maryland, is Minn. 351 Minnesota, Indiana, Michigan ; whileCon-sMicii.ies. necticut, Pennsylvania, Ohio, Iowa, Kan- 45 46 FAEM LAW. 68 Penn.' It^35. ^^^' W^st Virginia, California, and some ifowa.lss"^' others, adopt tlie other rule, that the man I'^c^^tm!^^' "^lio cultivates his land must keep other 7 Jones (N.C.), people's Cattle off. And statutes some- 10 Eioll. (S.C), ,• J 1 227. times so declare. 22 Tex.' 355.' But two parallel fences would be at- 65 Mo. 580. , 1 1 .,1 1 1 31 Mias. 162. tended with useless expense ; and, as one and the same fence would answer for two adjoining proprietors, it was long ago pro- vided hj statute law, in many states, that adjoining owners of improved lands should maintain partition fences in equal shares ; and, if they did not agree how the fence should be divided, either might apply to the fence-viewers, elected by the town every year, to decide which part each pro- prietor should keep up. And if, after such decision, either party refused or neglected to buUd or keep in repair his portion, the other could do so, and recover the expen- ses (in Maine double the expenses) of the delinquent owner by a suit at law. It fol- lows, therefore, that if my adjoining own- er does not keep up his half of the fence, and my cattle get through and injure his crops, he has no redress against me, since his own neglect was, in part at least, the cause of his injury. But now comes in a very important addition to this rule ; and this is, if my cattle stray beyond the im- mediately adjoining land, into the farm of AS TO FAEM FENCES. 47 a third^pazs^iij and_there injure his crops, I am liabl ejfor the damage to Mm, although my own half of my fence is good, and my animals escaped through my immediate neighbor's defective fence; because, as to all persons except my nearest neighbor, I am still bound to keep my cattle on my own land ; and it is no excuse for me, so far as third persons are concerned, that my neighbor neglected his half of our di- vision fence. Whether my neighbor would be liable to refund to me what I had to pay to such distant owner, is not yet set- tled ; but it is established that the latter could not himself sue the negligent land- owner, but only the owner of the cattle, n Gray, 489. Nay, so far is this rule carried, that al- though 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 my cattle further off. In other words, if A, B and C own three ad- joining lots, and A's cattle stray into B's land through B's neglect, he has no reme- dy against A ; but if they stray still fur- ther, on to the land of C also, and there do mischief, C has a claim for the damages against A, even though the animals went 48 FARM LAW. througli his own broken-down fence. A must keep his animals at home at his own peril. So if your vicious bull escapes from your pasture, solely through a defect in the fence, which your neighbor -was bound to keep up, and after roaming over his lot, finds his way into other lands, still further away, and there injures man or beast, you are responsible, though you did not know 105 Mass. 71. the fence was down. For similar reasons, if A turns his cat- tle into the highway, and they come on to your land from the road, either because your front fence is defective or altogether gone, you have a remedy against A for all the damages you sustain ; for you are not obliged to have any fence on the road, ex- cept to keep your own cattle in, and A must keep his own cattle at home. And so stringent is this rule, that if other peo- ple, in roaming over your grounds, hunt- ing, fishing, or berrying, leave your bars down, by which your cattle escape into the highway, and thence come into my cornfield, you are responsible to me for all the damage, although not actually in fault, 30N.H.143. if you kept all your fences up. On the other hand, if you are carefully driving your cattle along the highway, and with- out your fault they break away from your control, and run into my adjoining land, AS TO FARM FENCES. 49 and you drive them out as soon as you reasonably can, you are not responsible for the damage done; for you had a right 114 Mass. 466. to drive them along the highway, with gf plnn'^'st. proper care and attention ; while in the ei m! 307. other case they were not lawfully in the highway at all, although the owner was not personally at fault. The proper legal height of all division fences in Massachusetts, Maine, and some other states, is four feet ; and they may be made of rails, timber, boards, or stone. A brook, river, pond, ditch, or hedge, may also be sufficient, or any other things which the fence-viewers consider equivalent to a four-foot rail-fence. The number of rails is not prescribed by law. But do not think because you have a good rail-fence, four feet high, and well kept up, that therefore you have done your whole duty in keeping your animals at home ; for if your greedy cow pokes her head between the rails, and lops off your neighbor's corn or cabbages, you are as much bound to pay for the damage as if you had driven her clear in and told her to eat her iiU. l.^r.iocp. Neither think your responsibility is al- ways confined to damage done hy your cattle. If the cattle are injured by your negligent fence you may be responsible to the owner. A few years ago two farmers 5 60 FARM LAW, had a wire fence between them, now so common in some parts of the country. One allowed his end of the fence to g'et rusty, and fall over into the grass, and gradually it broke up into short pieces J the other's cow, feeding in the tall grass, accidentally swallowed one of these bits of wire, and a post mortem examination soon became necessary. The coroner s in- quest decided that the cow must be DiT. 254. paid for. If that is good law — and I suppose it is-»-your wife or maid-servant shordd be careful where she throws her old hoop- skirt, lest some unlucky cow gets hold of it while browsing on the grass and vines ■ that have run over and concealed it. 18 Bari). 397. Theso division fences may usually be 48 Mo!'38o. placed one-half on each side of the hne, even though ditches be used three feet 2 Met. 180. wide ; and both owners have a common interest in the whole fence ; and they must be kept in good repair throughout the en- tire year, unless both parties otherwise agree. But the duty of maintaining par- tition fences by statute, exists in Massa- chusetts only when both parties improve *^|^; ft^^l: tJieir lands. It would not be just to make a man, whose lands are wild, or not im- proved, and on which he neither has cat- tle to stray away and injure others, or AS TO PABM I'ENCES. 51 growing crops wliieh can be injured by other people's animals, to pay the expense of building or maintaining a fence which, can be of no advantage to him. Accord- ingly, if only one of the adjoining owners improves his land, he has no right to com- pel the other to pay any part of the ex- pense of a fence (except in some states as to a house-lot of half an acre or less) ; and if he needs a fence to keep his own animals at home, or for any other purpose, he must build it himself. If, therefore, A owns a 98 Mass. 565 pasture-lot alongside of B's wood-lot, the latter is not bound by statute to help maintain a fence between them ; but, if A puts cattle into his pasture, he must keep them there as best he can, either by watch- ing them, or, if he thinks it cheaper, by building a fence himself aroundhis entire lot. So, if both are wood-lots, the owners are not obliged to erect a fence ; but, if either allows his cattle to range the woods, he must take care they do not browse through his neighbor's woods, or he will be re- sponsible. In -some states, if A, the owner of land which he has heretofore kept fenced, wishes to lay it common, he can do so by giving six months notice of his intention to the occupants of the adjoining land, and then he will not be obliged to main- 52 FAEM LAW. R. s. Me. oh. tain a fence, so long as his land lies com- isj 14. ° ' ' mon and unimproved. The safer way al- ways is to give this notice in writing. But he,must not take away his fence ad- joining any improved land, without first giving the owner or occupant an opportu- nity to purchase it, and if they cannot agree upon the price, the fence-viewers will appraise it for them. The sum of the whole matter is this : by the common and general law every man is bound to keep his own cattle on his own land at his peril. The duty of doing this by a fence is created wholly by statute, and a fence need not be made except where the statute clearly requires it. And when the law requires a man to erect a division fence, he has a right to 60 Barb 45. such use and occupation of the adjoining 28 Aia^385.^' land as is necessary to carry out that duty. What we have thus far said as to the joint expense of fences, relates only to par- tition fences between two farmers. As to fences along a railroad, the law is quite different. The general railroad law, in some states, requires the company to main- tain a suitable fence along the whole line, through woodland as well as improved land ; and the farmer has no part of the expense to pay. This railroad fence need not be always four feet high, nor need it AS TO FARM FENCES. 53 always be so close as the division fence be- Q^^t\ Mass. tweeu land-owners. It must be " suita- losMass^'igsf' ble " merely, — sviitable for the place where n^^^^s. sie. it is situated ; and through the woods, or where there is little or no danger of ani- mals straying on to the track, it might be quite light, and yet comply with the law. But if any cattle of the adjoining land- owner do escape through it on to the track, through its unsuitableness, and are there injured by a passing train, the company is i AUen.is responsible. But here, again, the same ss Me. 422. principle comes in which we have before stated : viz., the company is not bound to fence out everybody's cattle, but only those of the land-owner immediately ad- joining. If, therefore, the animals of one remote from the railroad break out or stray away from their pasture, and after wan- dering over the intermediate lands, finally find their way on to the railroad, and there meet their death, the railroad company is not absolutely liable: the owner should have kept his cattle on his own lot, and not allowed them to trespass on others' 42 yt^sis. lands. In some states this may not be so. ssNiniW Of course, if they were lawfully pasturing on the lands near the railroad, - by permis- sion of the land-owner, they would be pro- tected in the same manner as his own ani- 5* 54 PABM LAW. mals are ; but if, unlawfully straying in the highway, they are killed while cross- 25vt. 150. iiig ^ railroad, the company is not bound i2c.'^'m' to pay, unless guUty of actual negligence. CHAPTER IX. IMPOtrNDESTG CATTLE. Closely connected with the subject of fences is that of impounding animals. If you find your neighbor's cattle in your cornfield, there are three courses you may pursue : 1 You may put the animals in the town pound. 2 You may sue the owner for damages. 3 You may quietly turn them into the highway, and say nothing. Of these three the last is the easiest to be done, and the hardest to make up one's mind to do. We are directed in the good book to forgive our neighbor his trespass- es, but my copy says nothing about for- giving his cattle their trespasses. If a man ever allows himself to violate the third commandment, he is tempted to use that outlet for his indignation, when he jumps up from the dinner-table in a hot day in July to drive his neighbor's breachy cattle for the seventh time out of his gar- 55 56 PAEM LAW. 18 Pick. 227. 6 N. H 213. 10 Vt. 71. S2 Peun. St. 58, 66. 23 Vt. 236. 9 Mich. 158. 18 Vt. 425. 13 Hun, 127. 66 111. 309. 6BlacM. 258. den or cornfield. It might, perhaps, alle- viate his sufferings to know, that, if they then stray away and are lost, it is not his fault, and the owner has no claim on him ; and he may even mildly hasten their de- parting steps by the aid of a good-sized dog ; and if the. said dog, in the excitement of the moment, takes a bit out of the nose or ear of the trespassing cattle, its owner is not bound to supply another. In some states, however, you must, apparently, be careful how large and fierce a dog you " set on " to your neighbor's cattle, lest you also suffer. The second remedy of a suit at law is more peaceful, but slower, and more likely to benefit the lawyer than the farmer. Impounding is the most summary, and generally the most effective, but is sur- rounded with legal dangers ; and ai slight mistake is often fatal, and, like " Some muskets aimed at duck or plover, Bear wide, and kick their owners over." The general outline of this remedy in Massachusetts is this. If any person ac- tually finds any sheep, swine, horses, or neat-cattle doing damage in his land, he may drive them to the town pound, or some other suitable place, giving them suf- ficient food and water ; or he may shut IMPOUNDING CATTLE. 6T them up in his own yard for a reasonable time before driving to the pound, and in the meantime send a memorandum to the owner of the animals, stating the cause of impounding them, the amount of damage done by them, the charges for feeding, etc., in order that the owner may come and pay the damages, and take away the beasts. If he does not come, or if the par- ty impounding prefers, he may, in the first instance, drive them to the pound, or send for a field driver* (who is generally the last marriefl man in town) and request him to impound them, sending a similar memo- randum to the pound-keeper, and also a written notice of the fact to the owner of the animals, within twenty-four hours, con- taining a description of the beasts, and a statement of the time, place, and cause of impounding. Before the owner can release his animals, he must pay the damages and all the expense ; and, if he decline to do so, they may be sold by public auction, and the balance of the proceeds above the expens- es deposited with the town treasurer for the benefit of the owner. This remedy seems to be seldom resorted to in modern days ; for, in most of the town pounds which we pass, we notice that the gate is *In Maine the office of field-driTer no longer exists. 63 Me. 154. 58 FAEM LAW. entirely gone, or so dilapidated as to fur- nish very little security against the escape of animals confined therein : nevertheless, every town in Massachusetts and Maine is stiU liable to a 'fine of fifty dollars for '"^pfls!' ^*' not keeping one or more suitable pounds. A recent law in Massachusetts has add- ed one more very important protection against invading animals, making the own- er of any sheep, cattle, horses, swine, or fowls, liable to a fine of ten dollars if he wilfully allows them to enter another's orchard, garden, mowing-land, o» other improved land, after receiving written no- ciip. 168. ^ ' tice from the owner forbidding it. This statute extends to fowls, which the laws in regard to impounding did not. CHAPTER X. paembe's animals. Passing from tlie subject of cattle straying away, and doing damage on other people's grounds, we have next to consider how far the farmer is liable for their good behavior in the public streets, or even on his own premises. It is clear enough, that if a vicious horse by the city sidewalk sud- denly nips a piece out of your coat-sleeve as you are passing by, and his owner knew his habits, he is bound to pay the tailor's bill; whereas if he only frightens you, and makes you jump, you have no re- dress, for that is what the law calls dam- num absque injuria. That is an innocent expression in itself; but, if you give an excited utterance to it, a bystander might think you were indulging in forbidden language ! It may not be generally understood that if a man turns his animals loose into the public -highwa)^, and they there injure the person or property of another lawfully 59 60 FARM LAW. 4 Allen, 444. 39 N. Y. 400. 15 Perm. St. 188. 55 Me. 538. 10 Coi, 102, Exod. xii. 29. 27 Conn. 404. 124 Mass. 49. 3 E. D. Smith, 674. 4 Dev. & Bat. 146. 4 Sneed, 468. 38 Wise. 300. 37 Iowa, 613. using the way, the owner is responsible for all damages they may do, whether he knew-they had any dangerous disposition or not. He had no right to let his cattle run loose in the public highway. In one instance a -farmer's old black sow was wal- lowing in the gutter by the side of the road, and frightened a horse and threw a young lady out of the carriage ; the farm- er was held liable, although he did not know the animal was at large. In anoth- er instance a man let his horse go out to feed in a public place where some very young children were playing, and some of them began to switch him, whereupon he turned and kicked one of them so that he died, and the owner was convicted of man- slaughter. Had he known the animal was dangerous, it might have even been more serious with him, since, in the Mosaic law, it was declared that if the owner of an ox knew that it pushed with his horn, and did not keep it in, and it killed a man or wom- an, not only the ox, but also the owner, was put to death. And now as to his liability for animals on his own premises. Every owner of a dangerous or vicious animal known to be such, is liable for all injury he may do to another, even though the latter is at the time trespassing on the former's premises. faiimek's animals. 61 If, therefore, a man, while hunting through your woods on Sunday, is attacked and bitten by your savage dog, you must pay for the pound of flesh, although you did not set him on. You should have posted n wend. 407. up the advice of St. Paul, — Bewaee op Dogs. And in like manner, if a boy, while robbing an orchard, is tossed by a vicious bull into the boughs of the apple- tree overhead, the owner is as much liable in law to pay for the boy's torn trousers as if he had received the same salutation when boldly coming up the path in broad daylight, to call on the farmer's youngest daughter. In one instance a farmer, who was much annoyed by strolling fishermen, put a savage bull into the lot along the stream. On his neighbors remonstrating with him that he ought to give strangers notice what kind of animal it was, he re- marked, "the fellow would give them no- tice enough himself;" but, as his notice was rather too brief, the farmer had to pay five hundred dollars for two broken ribs. 3 c. & p. iss. And if the owner of a vicious animal is liable for injuries to a trespasser, much more is he liable to one who is lawfully walking through his grounds. Not long since, the proprietors of that beautiful "Congress Spring Park," at Saratoga, were ordered by the court to pay |6,500 to a 6 62 FARM LAW. young lady named Edgar, who, while en- joying a walk through the park, was at- tacked, and serioasly injured by one of the animals kept there as part of the attrac- tions of the place ; and it was thought to be no excuse that the owners had posted up a conspicuous notice, — " Bewaeb of the BuoK." And after a very elaborate argu- ment, the Supreme Court of the United States at Washington refused to disturb the 99 u. s. K. decision. What a dear creature' that animal was, wasn't it, especially after such a verdict ! But this extreme and severe liability absolutely depends upon the fact whether the owner of the animal had any previous knowledge of the brute's warlike disposi- 16M. & w.'ses. tion. If so, the mere keeping of such an 5 0. B. 622. ' animal uhconfined is itself, in law, deemed 424. '' ' culpable negligence. If he did not know the fact, some other form of negligence is essential in order to make the owner of an 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, 53 N. H, 442. uulcss he caTclessly left him unhitched, or seni. 319 -i, r. _., ,. ', 24La, Aim.390. was guilty 01 some other negligence. The not uncommon opinion to the contrary is quite erroneous. farmer's animals. 63 As to o-WTiership of a farmer's animals. These, like all otlier personal property, may usually be bought and sold by an oral bargain, and as all 'know, not even a bill of sale is necessary ; but in many states, if the animal is over fifty dollars in value, a mere oral contract for its purchase is not binding in law unless it be actually delivered, or the price be paid, in whole or in part, or unless some note or written memorandum of the sale be made ; but the precise details of this statute can not be fully stated in a treatise of this kind. One caution may be necessary in buy- ing animals : that is, be sure that the sell- er really owns them ; for if a thief steals a horse, and sells him to you, and you pay ^g-'^f -ii^*- your money for him, in good faith, the real ^2 n. h.^ibs. owner may come and take him from you, I cow°238"' without repaying what you have advanced, lohio^bs?"' Perhaps he would be bound to pay a fair charge for your keeping him in the mean- time. 106 Mass. 286. Of course a farmer does not lose his right of ownership in his domestic animals, although they have strayed away, and been really given up as lost. And this is so as ^ Tfg.''' " ' to animals which were originally wild, but which had been tamed or reclaimed. A farmer in New York state once tamed a flock of wild geese, and they wandered 64 FABM LA"W. 15 Wend. 550. away on to a neighbor's pond, and he shot them, but he was held responsible for their 10 Johns. 102. value. On a similar principle, if a swarm of bees leave one of y6ur hives and take to the woods, and you follow them, and mark the tree where they light and enter, your ownership of them still continues good as to all persons, unless it be the own- er of the tree. No' other bee-hunter, at any rate, has a right to capture and carry them away, or even their honey. Bees belong, by nature, to the class of wild an- imals, so called ; and wild bees in a tree ordinarily belong to the owner of the land where the tree is situated ; therefore a third person who finds a tree in the woods containing a swarm of bees, and marks it with his initials, does not thereby acquire any ownership in the bees, even as to any other bee-hunter, who comes along afterward, and actually captures and car- ries them away. The latter could hold them as against the first finder, thoiigh perhaps not when claimed by the owner of the tree. In cases of wild animals, pos- session is pre-eminently "nine points in the law." The same is true of other wild animals. A hunter does not acquire any legal right or ownership in a wild animal by pursuing him with dogs and gun, not even if he has 7 Jolins. 16. 1 Cow. 243. 3 Bilin. 546. 2 Dev. 162. taemer's animals. 65 wounded him, and is pressing him so close- ly that his capture is almost certain. Any- other hunter may " sail in " and take him first, and in law would have the better right. Perhaps, if the first hunter had caught him in his trap, from which he could not, in all probability, have escaped, the rule might be different. But wild an- 20 Johns'. 75." imals, which are of any value, either for food, fur, or otherwise, when once re- claimed or tamed, are properly subjects of private property, and so long as they remain such, a man's right to them is fully protected by the law. es n.'cI'Iis. CHAPTER Xr. ABOrri DOGS. The question of liability for and protec- tion against dogs has been a perplexing one from earliest times. The laws of Solon — undoubtedly the wisest law-giver of his age — declared, that, if any dog bit a person, he should be delivered up, and bound to a log of wood four cubits long ; and the Romans also adopted the same law in their " Twelve Tables ; " while an early law in Wales provided, that, after a dog had bitten three persons, he should be first tied to his master's leg, and then killed. Owing to the naturally wild and fierce disposition of dogs, it has not been gener- ally thought necessary by legislators, in order to inake the owner liable, to prove that he actually knew the dog was accus- tomed to bite, as it is iii the case of other domestic animals. The law presumes that the son of every Puritan farmer has been 66 ABOUT DOGS. 67 brought up from boyhood to repeat those lines of good old Dr. Watts: — "Xet dogs delight to bark and bite, For God liath made tliem so." Accordingly the owner is liable, if they do, whether his education on this point 3 ^j^^ jgj_ has been neglected or not. And not only so, he must, in both Massachusetts and Maine, pay double damages for the pleasure of keeping such animals ; and, after actual notice of his disposition, the damages may q^^_ st_ j^^^^ be sometimes increased to threefold. And ''''^p-*^- so comprehensive is this law that, if your dog rushes out into the 'street, and in mere play jumps at a horse's head, where- by he is frightened and runs away, break- ing the carriage, and perhaps the limbs of the occupants, you are responsible for double the amount of the entire damage, though it amount to several thousand dol- lars; for the liability of the owner is not limited to damages from the bite of a dog, but extends to any direct injury, however caused. Again, if your dog is at large, although he is-a good-natured Newfound- land, and, being teased and irritated 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. 4Aiien, 431. 68 FAEM LAW. In a recent case in Massachusetts, a boy thirteen years old met a large dog weigh- ing about one hundred pounds, and as the dog approached, the boy struck him with a stick about three feet long, and there- upon the dog snapped at him, and bit him on the leg ; but the dog had to pay for it, because the jury thought the boy acted as 38 Wise. W. most boys of his age would have done! If he had been thirty-one instead of thir- teen years old, the dog would have come 65111.235. off victorious. The old notion was that every dog was entitled to one bite, before his owner could be made liable ; but this doctrine is now exploded, and in these days every bite 65n.'y. 54.' " counts one, large or small. And this is so, although the dog is duly licensed and collared. The object of the dog-tax was not to exempt the owner of a dog, when known, from his former liability for all his dog's mischief, but to provide a fund for the remuneration of the farmer, when the owner was not known, or was not pecun- iarily responsible. Accordingly, in Mas- sachusetts, any man whose.animals are in- jured by a dog, may now have either mode of redress, — he may file his claim with the selectmen, and take simply the amount of damages he may have sustained ; or he may " go for " the owner of the dog, and ABOUT DOGS. 69 get double damages, if he can: but he cannot try both methods. If he is paid 2 Alien, 208. his simple damage out of the dog-tax, the county may compel the owner of the guilty dog to refund the amount paid out. This choice of remedies, however, does not exist in Maine, for in that state he must look only to the keeper of the dog for re- dress. And if the keeper of the dog is not the owner, but merely harbors the beast, he is liable for the damage done 52 Me. its. just the same. If one is injured in his own person, his only remedy for remuner- ation is against the owner of the dog. The " dog'law " does not include injuries to man, but only to his domestic animals. Perhaps it should be extended in this re- spect. But no man is obliged to wait until the mischief is done, and then seek redress by the law's delay. You may take the law into your own hands, and kill any dog, li- censed or not, that suddenly assaults you while peaceably walking or riding in the 21 wend! 407! public streets ; and so you may if the dog H comaso. is found out of the enclosure or care of the owner, wounding, worrying, or killing 9 j^^^ 233. any neat-cattle, sheep or lambs. So as to a M'sMb^is. dog which continually haunts your house, barking and howling day and night, disturb- 70 PAEM LAW. 23 Tfend. 354. j^g ^j^g peacB and quiet of your family. But you could not lawfully kill a neighbor's dog merely because he was peaceably walk- ing over your grounds without leave. If a dog is not licensed, your right to km him is much broader. The law of Massachusetts says you may kill him "whenever or wherever found." These are its exact words. But if you think this authorizes you to kill him on his owner's premises, and you should pursue him into his owner's house and there kill him, con- trary to his master's wishes, you might find out your mistake by being compelled 11 Allen, 161. to pay, uot Only the full value of the dog, 15 Gray, 'ei. ' but also for Unlawfully entering the own- 4Dev. &Batt. , . ,,Tit7-, J 1 146. er s premises. " Whenever and wherever found," therefore, don't mean exactly what it says. Such are the quirks of the law. Again : do not think, that, because you can openly and publicly shoot an unli- censed dog which is hanging around your premises annoying your family, you can therefore poisoji him; for that kind of physic is not to be thrown even to dogs, and the mere exposing of any poison for that purpose, whether the dog touches it or not, may cost you fifty dollars and the costs of prosecution. And this is very moderate, considering, that, for the mali- ABOUT DOGS. 71 cious poisoning of some other domestic animals, — even a sucking calf, — ^you may- obtain, if you live in Massachusetts, a free residence in that splendid new State build- ing at Concord for five years, or if you live in Maine you may be a guest at Thomaston tot four years, — that is, unless you see fit to break out before that time ! Thus much for the law of dogs. And the only crumb of consolation I can offer on this subject is this : if two dogs, yours and your neighbor's, go off oh a joint raid on a flock of sheep, you are bound to pay jq pj^j^ 4™ only for those your dog killed, and not IV* y'^'isi^" the others, if anybody can find out which % yt^g' ^'"'• was which; whereas, if the two owners of ^^'^•'''^• the dogs go out together to rob a melon- patch, one is liable for all the melons ear- 10 wend. 664. ried away, although the other ate them is owo', 1. ' all ; so that in one respect the law seems 399. to favor the dogs. On the other hand, as a man is not liable for any sheep, fowls, or other things which his mischievous boys wantonly kill when coming home n j?iij.ni 4 Denio, 1T5. from an unsuccessiul hunt, drunk or so- 59 in. 51. ber, in this respect again the law is rath- 24 mo.'219.' , , , , IT Wise. 230. er agamst.the dogs. isKana.sis. However useful dogs may be, it was a principle of the old common law of Eng- land, adopted in many American states, 72 PAEM LAW. that a man could not have any ownership in a dog, and therefore if I should steal ff'&n'sri J^^^ ^°S (instead of one of your chick- IsAia'fei*"'' 6"®)) ^ could not be convicted of larceny for it. But in many states a more sensi- iT Kana. 480. ble rule exists, either by statute, or oth- IFarker, 893. „„,„•„ 4 Parker, 386. erWlSe. CHAPTER XII. LIABILITY FOB HIS MEN. The liability of a farmer who employs many hands may prove extremely onerous at times. As a general rule, he is liable for all the injury they do "while actually employed in his business ; therefore if you send a boy to burn old brush, and the lad leaves his work to look after his partridge- snares or rabbit-boxes in the wood, and the fire runs into the next field, and con- sumes the crops or fence of your neighbor, you must pay the bill, although you told him to watch it carefully, and never leave it a minute. If you send a load of farm- 7 cush; sss.' produce into town, and the driver falls into a doze and runs into another team, you must pay for the broken spokes. If your man, in going to or from the hay- field, carelessly swings his scythe, and cuts an ugly gash in the leg of a passer-by, you had better pay the doctor's bill, and be glad to get off thus easy. If, in cut- ting your wood, a man accidentally cuts 7 73 74 -EARTH LAW. 23 Mich. 298. 3 Sueed, 20. 126 Mass. 24. 12 Allen, 49. 114 Mass. 618. 109 Mass. 154. 63 Me. 177. 43 Conii. 244. 26 Penn. 482. St. i Daly, 338. 9 B. I. 262. over the line, on youx neighbor's lot, you are responsible, although you told him where the line was. A short time since a man was driving his master's horse and wagon through Bromfield street, Boston, on his master's' business, when the horse kicked off a hind-shoe, which struck a large plate-glass window in a store, and the owner of the animal had to buy another pane of glass. And though your man shows a touch of maliciousness in his act done in the prosecution of your busi- ness, and intentionally runs into another team which somewhat obstructs his way while driving your load, you may not screen yourseK behind his unnecessary and wilful violation of your orders. Of course, in all these cases, you could com- pel the servant to repay you all the ex- penses he had thus caused you by his misconduct.- On the other hand, to make you 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 pleasure, or busi- ness of his own, and rifns over somebody, you are not responsible merely because it was your horse and wagon; much less would you be liable if your servant took your team without your knowledge on pleasure or business of his own. LIABILITY rOE HIS MEN. 75 How it would be if the fellow was on his own business and yours too, is a nice question, which might puzzle even a "Philadelphia lawyer." In one instance a farmer" lent his man his team to go to town for a holiday, and asked him to stop at the butcher's on his way home, and bring along a piece of meat for next day's dinner. While fulfilling this order, the man also took a little "fire-water," and soon after ran over an old woman in the public highway ; but the master was con- sidered not responsible. This was, how- ever, in the courts of the Emerald Isle. ewf One more distinction on this subject it may be well to state ; and that is, that, al- though an employer is responsible for any careless injury his men may do to third persons, he is not responsible for such an injury to other fellow-workmen. If a hired 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, by a species of rather artificial reasoning, I think, a man, when hiring out, is sup- posed in .law to have anticipated any dir rect injury from the carelessness of his co- 3^^ ^^^ to wa laborers, and taken the risk on himself, u^Mass. 234. whatever his rate of wages. But, on the other hand, he is not presumed to have 48 Me. 113. 29 Conn. 548. 8 N. y. 175. 38 Ind. 294. 76 PAE.M LAW. contemplated any negligence on the part of his employer; and therefore he has a remedy against the latter for his own per- sonal carelessness, or in providing danger- ous or insufficient machinery or apparatus, or even in hiring notoriously incompe- tent or habitually 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, 111 Ma33. 322. but which the man did not know of. And this last rule would probably render the employer liable for any injury to his serv- ants from dangerous or vicious animals intrusted to them to take care of; at least, if the owner knew of their character, and 9Exch.223. the man did not. But this whole subject is siorrounded with subtle distinctions; and my best advice to you is, that, if you ever have such a case, do not rely upon this article, nor upon any of those books called "Every Man his own Lawyer," but go and get the best legal counsel you can find. CHAPTER XIIL ABOUT FIRES. If a careless hunter fires your -woods, and, much to his consternation, the flames spread to your fields, and run along the fences to your barn, he is responsible for the whole loss, although he did his best to stay its progress. A man who wrong- fully sets in operation, a dangerous instru- ment, must take all the consequences di- 21 Pick. 378. 43 Cal. 437. rectly caused thereby ; and this would be 2 Harr. 443, so whether the fire ran along the ground continuously, or whether the sparks were blown through the air a considerable dis- tance over intervening land, 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 proper times and in a proper manner, he is not respon- sible, if, by a sudden rise of wind or other cause, without negligence on Ms part, the fire is accidentally communicated to a neighbor's premises, and causes him seri- 7« 11 78 FAEM LAW. ITone/f: c. OTIS injury. The gist of his Uability (I ^^^" believe the lawyers call it) in such cases is some carelessness, either in the time of 54 Me. 259. setting the fire, or the manner of doing so, 44 Barb.' 424.' Or in watching it afterward ; and the man 11 Met. 460. who suffers is bound to make it clear that 25 N. Y 511. 16 Mo. 508. ' the other was to blame. But even your negligence wUl not always render you lia- ble for the spread of a fire, unless it was originally kindled by you intentionally. Therefore, if your barn takes fire through your carelessness 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 1 Bi. Com. 321. seems to consider that you have suffered 37 Barb. 15. i j? t j_ • j.i i jf 35N. Y.210. enough tor your conduct m the loss oi 633. " ■ your own property ; although there is some difference of opinion aboiit this. Still less would you be responsible if the fire originated from causes beyond your control. If your barn is struck by light- ning, or your haystack ignites by sponta- neous combustion, without any fault on your part, and the flames spread to the ad- joining owner's property, it would be hard indeed if you had not only to lose your 8 Johns. 422. ij_i jy t • i »i-r iiQ. B.317. own, but to pay tor ms also. And L sup- pose, even if you were careless in not promptly and energetically putting it out when you could have done so, and it ABOUT FIEES. 79 spreads beyond your control, this would not render you liable, as perhaps it might have done had you purposely set fire to your brush-heap or stubble. As to railroad fires the law is stated elsewhere. CHAPTER XIV. •WATER BIGHTS AND DEAIKAGB. Watbe 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 right to nse any reasonable quantity of it as it flows along, for watering his stock, irrigating 25 Conn! 331! his land, or supplying his house for domes- 17 Barb. 664. t> .l il ^ i T j-V 4 Geo. 241. tic use. JBut he must not monopolize the whole : his neighbor's cattle must have water also. Perhaps if the stream "be very small, and his own reasonable wants con- sume the whole of it, he might have a right to use the whole. He may, to some extent, change the course and flow 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 point or place than where it naturally entered therein. He may build fish-ponds, or oth- erwise dam up the stream, provided he does 80 WATEE EIGHTS AND DEAINAGB. " 81 not thereby flow back on the land above jp jj^, ,^4 him. If he does so, he is liable to a suit f g^j^"^; |°/j_ for trespass, and finally, if he continues it, 32 vt.'426*^*' to an injunction. A farmer acquires no * ^'^^' ^"• right to flow another's land without his consent, as a mill-owner has ; for the stat- utes giving such right, upon payment of a fair compensation, generally apply only to mill-dams, cranberry-dams, and the like : and, if your neighbor below you does so dam up the stream as to flow back on you, you may enter on his land, and take down enough of the obstruction to relieve your land of the overflow. So, if a natural stream becomes obstruct- ed by leaves, sticks and rubbish, you have a right to go on to tliB land and remove the obstructions, so that the water will flow as freely as before ; and the natural 5 Met. 429. deposits you may place on the banks of the stream. The same rules prevail as to 21 Rck. 341. artificial water-courses or ditches, provid- ed you have acquired a right to have a ditch 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 en- joyed it so long and under such circum- stances as to have thereby gained a pre- scriptive right as it is called, or, lastly, have had the ditch opened by commission- 82 FARM. LAW. SAllen, 7. 12 Allen, 240. ers appointed by tlie court under the gen- eral statutes of Massachusetts. The rights and liabilities of farmers in surface-water are very different in some states from those in flowing or running streams. By "surface-water" is meant, not only that which comes from falling rains and melting snows, but also that which oozes out of the ground from springs or marshy places, and which finds its way over the surface, or through the tussocks, but is not gathered into a bed or current like a brook or rivulet. When once col- lected into a stream, with a bed and banks, it loses its character as surface-water, and becomes subject to different rules ; but, so long as it is only smrface-water, any man on whose land it is has a right to detain and use the whole of it on his own land and for his own purposes, and is not bound to let any portion of it flow on to the land below, unless he wishes. On the other hand, he may turn the whole of it on to the premises below him, whether grass- land or cultivated field, even though it be a serious injury to such neighbor. In Indiana, a short time ago, a farmer own- ing lands on the Ohio river, which were often subject to overflow, planted a row of trees on his own land, and along the division line between his farm, and "WATEE. EIGHTS AKD DEAINAGB. 83 the proprietor above him, whereby, in times of great freshets, the drift-wood and rubbish, floating along, was deposited on the land of his neighbor, and caused him some considerable trouble and damage to remove it, but it was decided, after a very- elaborate argument, that the upper pro- prietor had no redress. 64Iiid. 167. If a farmer wishes to protect himself from mere surface water, he must build up some embankment at the edge of his land, and stop the flow, as he has a perfect right to do, although he thereby makes quite a loo Mass. isi. pond above, and injures the crop there. 46 cai. 346. But the law in some states is not so. 23mo. isi. And as the farmer may turn the surface- 74 n. c.'767.' water from his own land into yours, with- 407. out being liable, so a highway surveyor may conduct the road-wash on to you, even though it sweeps sand and gravel in- to your best mowing. If he turn a water- course on to vou in that way, you cannot , , • 1, r , ij_ 1 15 Gray, 486. sue him, but may m Massachusetts appeal ' -^ . , , ^ f \ Gen. St. U.44, to the selectmen, under the general statutes, sec. 10. ,, ° - _ _, E. S. Me.o. 18, chap. 44, § 10 (in Maine, under R. S., sec. 52. chap. 18, § 25) to have it changed ; but 2 Met. 599. surface-water you must take, or dam it up : that you can do, but you ought not to damn the surveyor for turning it on to you. If ^ permanent alteration is made in the surface of the road, by water-bars, 84 PAEM LAW. spouts, etc., as to constantly turn tlie road- water on to you, you may perhaps find some compensation against the town under „ „ tlie general statutes of Massachusetts, Gen. St. Masi. ,*,.„__ 0.44, sec. 25. chap. 44, § 25. As to under-ground water, the law does not generally recognize any right of own- ership therein ; and consequently, if your neighbor's well is fed by springs or under- ground rills from your land, you may dig down on your land to any depth you please, 18 Pick. iiT. even near to the line ; and if, by chance, 28 vl'49?' you cut off the supplies to his well, and 45 N?T.' 362! leave it dry, he must bear it as well as he "■"528!™' ' can. But you must be careful in digging not to dig so low as to cause his land to 11 Mass. 220. . , , . , 122 Mass. 199. cavc luto your excavation, or you may be 27 Gratt. 77. -i i , i n 99 u. s. 635. responsible tnereior. CHAPTER XV. TEESPASSING ON THE FAEM. The general rules in regard to trespass- ing on another's lands are pretty well un- derstood in the community, but on one point there is sometimes an erroneous im- pression. It is often thought, that, if a person simply crosses your land for twen- ty years, he thereby always acquires a right to continue the practice ; but this is far from being universally true. The yery foundation of acquiring such a right (pre- scriptive right as it is called) is, that the crossing must have been adversely to the land-owner, contrary to his wishes, or at least without his permission, express or implied, and under a claim of a 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 indulgence, of the land-owner, and not un- der any claim of right, it is wholly imma- terial how long the custom has continued. Forty years' travel by consent of the own- 8 85 86 PABM LAW. er would not give any right to continue to pass after he had been forbidden to do so ; and, to avoid any misapprehension in such cases, it is wise for the farmer to put up notices forbidding it, as we so often see done. And this not only makes it clear, that thenceforward the intruder is a tres- passer ; but, by a recent law in Massachu- setts, he is also made liable, after such no- tice, to a fine of twenty dollars for wilful- ly crossing or entering upon any garden, orchard, mowing-land, or other improved land, between the first day of April and Mas3.^st.i876,^j^g first day of December. Maine also ■^mai oTsi. ''' has a similar law. By this law the wilful trespassing on such lands during the summer and fall months, is made a crime ; and any consta- ble or other officer may arrest the offender on the spot, and take him before some proper tribunal for trial and sentence. But at all other seasons of the year, or as to any other kinds of lands, such a trespass is only a civil trespass, not a crime, and the only legal remedy is by an action for damages done, wliich may be very un- satisfactory. If, however, a man's object in coming into your premises is to steal your fruit, cranberries, or other crops, that itself is a crime, although he does not accomplish his TRESPASSING ON THE PAKM. 87 purpose ; and you may put Mm out by force, after notice to leave, using no un- necessary violence. But you cannot law- fully set spring-guns, man-traps, or other instruments which may do him grievous i Bing. 628. bodily harm, without giving notice of such 31 Comi. 479. hidden dangers. Perhaps if ample notice 478.' was posted up, of the existence and loca- tion of such instruments of Injury, a per- son trespassing might have no remedy for his misfortune. But even this has been 3B.&Aid.304. pointedly denied in this country. For it 59 Aia. 1. is nothing less than murder to deliberate- ly and intentionally kill another, merely for trespassing on your grounds. 3 Fred. 186. The old school-books, in my early days, had a picture of boys stealing fruit in the boughs of an apple-tree, with a farmer picking up stones, and a maxim, that, if words and grass did not answer, he might throw stones. But, if in so doing you should happen to put out the boy's eye, it might go hard with you ; for you have not a right to kill even your neighbor's hens while scratching up your melons and cu cumbers. The custom to do so, and toss thS fowls over the fence, may afford some satisfaction to the gardener ; but it makes him liable to pay the full value of the nui- sances, although he had repeatedly warned their owner to keep them at home, or take wconn. 1. ■^ 107 Mass. 406. the consequences. 10 s. & r. 394. 88 FARM LAW. A farmer in Connecticut, who had been greatly annoyed by his neighbor's hens scratching up his garden seeds, spread a quantity of Indian meal, mixed with arse- nic, on his own land, which had the effect 14 Conn. 1. designed ; but he had to pay for the fowls. Shooting an animal merely because it is 64N. c. 44. trespassing on your grounds, and injuring 6oni.'2ii.' your crops, is not justifiable. But this is not so as to a flock of doves, while busy pulling up your early peas or sweet corn. While so engaged you may shoot and eat 9 Pick. 15. them with impunity. Whether this rule applies to an old cat which is after one's chickens, I don't know ; but I mean to try it the first chance I have. Not but what a cat may be in the protection of the law on her owner's own premises, as a man in Canada recent- ly discovered, when he had to pay ten j!'i4.™" ^ dollars for the fun of shooting one. But when she has a chicken in her mouth, or 8 Jones N. c. -g j^gj. j^.ga,(iy to Spring at one in your own 8 Johns. 233. yg^^^^ ^-^Q case may be different. And in the case of the fowls above spoken of, the safer way, instead of shooting them, would be to buy a smart game cock that woftld soon lay them all out in windrows, as a good old deacon I have read of did ! The general rule seems to be that a farmer has the right to kill the animals of TKBSPASSING ON THE FAEM. 89 another, if they are in pursuit of his own, and there is reasonable ground to appre- hend that they will attack and destroy, or carry off the latter. This is clearly so in the case of tres- passing dogs, cats, hogs and such animals. The right to kill such animals is not con- fined to the very moment when they are in pursuit, or about to immediately attack the farmer's animals; but if from their habits or former conduct, there is good reason to believe one's own property is in danger, a man need not wait until the dog cro. jac. 45. *= ' ° S Lev. 28. has the lamb by the throat, or the cat has Lutw. 1494. •' ' 9 Johns. 233. the chicken in its mouth, before he can 5?f°°-„S'i3i8 ' 4 Dev. & Bat. fire. 110- An interesting illustration of this right to kill other people's animals recently oc- curred in the northern part of New Hamp- shire. A farmer had a flock of geese swimming around his pond, and hearing them all vigorously cackling; one morning, came out and saw four minks swimming after them in hot pursuit, and within a rod of them. As soon as the minks saw him they stopped pursuing the geese, and ran out of the water on to a little island and then stopped a minute, but long enough for the farmer to get aim, and he killed them all at one shot. A law of New Hampshire forbids any man to kill 8* 53 N H.: 90 FAEM LA"W. any minks, sable, or otter between May and October under a penalty of ten dollars for every animal so killed. And tbe farmer being prosecuted for this penalty, it was decided after very elaborate ex- amination, that he had a right to kill them, notwithstanding the law, if necessary to protect his own animals from destruction, and that it was not necessary he should first try to drive his own animals out of harm's way before killing their assailants. The decision in this case is very elabora,te and very interesting. One of the most annoying forms of tres- pass to the farmer is that of hunting and fishing. Many persons seem to suppose, that by force of some general custom, or 4 Pick. 145. otherwise, they have a right to hunt or 844. ■ fish over another's ground as they please ; 5h'. &'j. W5.' but this is quite erroneous. In all ordi- nary streams and ponds the right to fish belongs solely, to the person owning the 2 Conn. 481. adjoining land. If the stream is naviga- ble, — that is, if the tide ebbs and flows, or if it be large enough for commerce, as our great inland rivers, — 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 Massa- chusetts and Maine, if a farm contains a " great pond," — i.e., a pond containing over TEESPASSING OS THE EAEM. . 91 ten acres, — the public have a right of iish- ing and fowling there, "and may pass and repass on foot through any man's ' proprie- ty ' for that end, so they trespass not on any man's corn or meadow." The recent laws authorizing fish com- missioners to lease large ponds to private parties may, of course, modify the former ^38.^' ^^^^' rights of the public therein. ■ "0 mI^s. ire! As to salt-water fishing, the law is some- what peculiar ; for although the owner of the upland ordinarily owns the land down to low-water mark, as before stated, yet any other person may go there, and dig clams or other shell-iish, if he can do so by water, and without crossing the upland 7 Gray] tto! in going or returning. The Legislature 47 Me! 2&4.' may sometimes abridge or modify this right, and vest it exclusively in some per- son or persons ; but the ordinary rule is as eo n. t. se. , , , T 37 N. J. Law, above stated. loe. Another still more common and annoy- ing species of farm trespassing, is that of berry-picking ; but this practice, although so customary, is clearly contrary to law. And not only is the trespasser himself lia- ble to the land-owner, but all who buy and consume the berries so picked, are in dan- ger. The blueberry-canning establish- ments of Jonesport, Maine, were recently compelled to pay more than one thousand 92 PAEM LAW. dollars to the owners of wild land, over which the berry-pickers had long roamed without leave or license, although the lat- ter had been paid in good faith for the berries as they brought them in and deliv- 66 Me. 229. ^^®*^ them to the buyers. CHAPTER XVI. OVERHANGING TEEES. The question often arises, who owns the fruit of a tree standing near the bound- ary line between two proprietors. It is generally supposed that the fruit on the limbs overhanging one's land belongs to him ; but this is an entire mistake. If a tree stands wholly on your land, although some of the roots extend into the soil of your neighbor, and derive support and nourishment from his soil, he has no right to anv of the fruit which hangs over the h conn. 177. •^ ° 38 Vt. 105. line ; and, if he attempts by force to pre- 2s n. y. 126. vent you from picking it, he is liable for ^ ^^^^ ^^^ an assault and battery. 48n.y. 201. In one instance a lady, 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 scufiSle to prevent her, she received some bruises on her arm, for which he had the pleasure of paying the neat little sum of a thousand dollars. « Barb. 339. 93 94 FAEM LAW. If your fruit falls into your neighbor's lot, you have, I think, an implied license in law to go and pick it up, doing him no un- 113 Mass 376 ^^^'^^^^^^ damage ; but this may not be 12 vt. 273. positively settled as yet. If, however, a fruit-tree stands directly in the division line, and is what is called a " line tree," both parties own the tree and fruit in common, and neither can cut 12 N H 454 down the tree, or seriously injure it, with- 25n?y;i23 ^^^ being responsible to the other. Sometimes persons are tempted to pois- on or secretly kill a neighbor's tree of some kind, which stands near the fence, and casts a baneful shade on their garden plot : but this is dangerous business ; and the party doing so, in Massachusetts or Maine, may possibly find himself inside the county jail for a twelvemonth, where the rooms are apt to be small, and not al- ways very clean ! The safer way in such cases is to cut off the limbs which hang over your side, or dig down and cut off the rflots, which undoubtedly you have a legal right to do ; but it would not be safe to use the limbs for firewood, or otherwise convert them to your own use, lest you have to pay their value, more or less. While speaking of " overhanging " trees, I may also add a word about shade trees entirely on your own ground. Every man OVEEHANGING TREES. 95 has a right to cover his own ground with fruit, forest, or shade trees, as " thick as they can staud." And if so be a neigh- bor's house is so near the line that the trees make his house damp or unhealthy, he has not a right therefore to cut down, or prune out the same, but must bear the consequences as well as he can. 99 Mass. 598. One more caution I must give you in re- gard to overhanging trees ; and that is, if you have a tree near your line, which is poisonous to animals, as the yew tree, for instance, and you let the limbs hang over the fence so that a neighbor's cow browses them, and dies in consequence, you are lia- ble to pay for her, for you must not allow such dangerous things to spread from your premises. I suppose it would be different 4 Ex. dit. 5. if the tree stood far away from the bound- ary line, and the cow strayed into your premises, and there committed suicide : the verdict might then be, " served the owner right ; " he had no business to let her tres- pass on you. That was the case once where a man's cow strayed into a neigh- bor's sugar orchard, and there drank a bucket full of maple syrup, which caused her death. Her owner had no redress. Iicow.78. suppose it might be the same if cows break into your potato field, and kill themselves eating potato tops, on which you have used " Paris green." CHAPTER XVII. BEWARE 01" TEAPS. I DO not propose to discuss at length the general laws of purchase and sale, or of deceit and ■warranty, about which so much may be said ; but there are two phases of special interest to the farmer. One is the disappointment resulting from the purchase of impure or spurious garden-seeds. It is now well settled, that if a dealer in seeds sells an article marked and put up under a certain name, and it is so billed to the pur- chaser, this amounts to an absolute war- ranty or guaranty that the seeds are what they were bought and sold for ; and, if they turn otit not to be, the farmer has a remedy against the seller for the money he paid for the seed. And this is so, al- though the seedsman was honest in the • sale, and bought them for exactly what he sold them for ; and the seller would have a remedy back on the person who sold to 18Q. B.B60. him. But merely to get back the money paid for the seed would fall far short of BEWAKE OF TEAPS. 9T the loss to the farmer. His time, labor, fertilizers, profits on his crop, are all gone ; and the question has been much agitated, whether the seedsman is liable for all this loss. And it is now generally understood, that when he either expressly warrants the seed to be of a particular kind or variety, or when he so sells it without any reserva- tion or limitation, and thus creates an im- plied warranty, he is liable for all the dam- ages directly flowing from the farmer's use of such seed. 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 market, and only fit for cattle ; and he was allowed to recover of the seller the difference be- tween the value of the crop which was raised and a crop of early turnips on the same soil, even though the seedsman hon- 1 ^"S ^^^' estly thought the seed was as represented. ^ ^' ^- ^^' And in case the farmer is so imposed up- on, and the seed proves entirely worthless, and his crop of no value, he can make the seedsman pay not only the cost of the seed, but also for all the labor incurred, and the fair profit he would have had from the crop, had the seed been what it was repre- f^^^-^^^- sented to be. In one case the Shaker So- ^n. ir. 393. ciety at Watervliet, N. Y., had to pay 9 98 FABM LAW. heavy damages, because a lot of seed which they sold as " Bristol cabbage seed," came up a wild cabbage, running all to stalks and leaves, caused by the fact that they set their Bristol seed cabbages in the spring, near several rows of " Red Dutch," and the two varieties intermixed, produc- 7 Hun, 428. iug a worthless cross. To avoid this seri- ous liability, seedsmen at the present day very often print upon their seed-packages that they do not warrant any seed they sell, which may perhaps relieve them from their responsibility, unless they knew the seed was not true to name. The other subject to which I alluded is the "lightning-rod nuisance," so called. For several years past the agricultural com- munity has been overrun by swarms of unprincipled men offering for sale "im- proved lightning-rods," "patent pitch- forks," " white-wire clothes-lines," " force pump washers," etc. With persuasive cun- ning they prevail upon the farmer to ac- cept the agency for the sale of the article in his town or county, with reckless assur- ance of the profits to be realized there- from. They ask him to sign a printed contract for that purpose, which he unsus- pectingly does. The articles either never come to hand, or, if so, they are worse than useless ; and the agent thinks that BEWAEB OP TEAPS. 99 is the end of the transaction, and writes to have the rubbish taken away. A few months afterward another man comes round, — a confederate rascal with the for- mer, — and presents the farmer with his printed promissory note for a hundred dol- lars or more, and pretends he bought the same in good faith, and demands payment. The signature to the paper is genuine, and the farmer is amazed to know how it came there. Nothing but a law-suit will reveal the fact that the strip of paper now pre- sented has been cut off from the bottom of his agency contract, and made to appear a very different affair from the real one, and the present owner is always ready to swear he is an innocent holder for value, and without any knowledge about the or- igin of the note ; having taken legal ad- vice, that, if so, he 'can probably recover the amount of the note, notwithstanding ^g jj^; ^■ the outrageous fraud, as has been frequent- 1^ lowa! 498. ly decided. While in many states, so anx- ^ ^' ^' ^^^' ious is the law to protect the honest farm- er from the schemes of such an unprinci- pled gang of swindlers, that it has decided, that if the signer was not really guilty of ^g^.^^ jg^_ negligence, in the eye of the jury, in be- l?"^.'4*c! p. ing misled by such a rogue, he is not bound 54 m' i96. to pay the note to anybody, indorsee |f mo'!'2'45!^' , 79 Fenn. St, or not. 370. 100 FABM LAW. The honest farmer is in the hands of a set of accomplished villains ; and in many instances their plans have been so well laid, that either he is compelled to pay the whole note, or, to avoid the ex- penses of a law-suit, compromise the claim. Beware of these miscreants; shun them as you would a rattlesnake. If there is one place hotter than another in the world to come, they deserve that corner, living as they do upon premeditated, cold-blood- ed fraud and deception. I have thus imperfectly touched upon some of the leading rights and liabilities of farmers ; and if, in this brief space, I have been able to impart any valuable in- formation, or save you from the many en- tanglements of the law, or even to-interest you but for the passing hour, my purpose has been accomplished. INDEX THE FIGTfBBS AT END OP EACH LINE DENOTE THE PAGE. ACCEPTANCE, Sliould be of the exact terms of tlie offer, 9. Should be strictly within time allowed by ofEer, 9. ACEES, Deficiency in number of, 13. Quantity mentioned in deed, 13. Intentional overstatement of quantity, 14. AGKEEMENT, As to crops if oral would not be valid, 20. Consequences to laborer if he breaks it, 25. AlSriMALS, If known to be vicious, owner liable for damage done by, 60. Must not run loose in highway, 60. If vicious and kept unconfined, owner is guilty of negli- gence, 62. May be bought and sold by oral bargain, 63. In buying be sure seller is owner, 63. Of over fifty dollars value must be bought or sold how, 63. Though astray, ownership is not lost, 63. Wild, when tamed are private property, 65. Cannot be killed for merely trespassing, 88. Has a right to kill if in pursuit of his own, 88, 90. 9* 101 102 INDEX. APPLES, In the road belong to wliomj 32. AKKEST, Of laborer excuses from farm work, 26. BAHGAIN, Closed by deposit of letter of acceptance, 10. Oral, gives no permanent right of way, 35, Oral, good for animals, 63. BAEN, Eights as to moving on highway, 32. BEES, Wild, belong^to land owner, 64. If a swarm leaves to whom they belong, 64. BELL, Attached to building passes with it, 22. BEEEIES, Persons picking them may be trespassers, 91. BLINDS, If old, go with house ; if new, contra, 21. BOAEDS, When loose in the buildings do not pass, 19. BOND, When to take one for a deed, 8. BONFIEE, Parmer may build on his own land, 77. Must be carefully watched, 78. INDEX. 103 BOUNDARIES, Three circumstances determine them, 12. Lines determined by monuments, 13. More important than number of acres, 14. Fraudulent statement of, 14. If to a tree or rock run to center of it, 15. BROOK, Boundary line is in middle of current, 15. BUILDINGS, Need not be mentioned in deed, 20. Include old window blinds, not new ones, 21. Include lightning rods, 21. When personal property, if ever, 21. What part of inside furnishing passes with it, 22. BULL, Owner responsible for damage caused by, 43. CAT, May be shot for killing chickens, 88. CATTLE, Laborer must feed on Sunday, 27. May be fed in the road by whom, 31, 32. Who is responsible for letting them out, 38. Injured on railroad track who is responsible for, 42. responsibility depends on circumstances, 43. Liability for stray, 45. Owner not liable for damage done by tliem when, 46. and when liable, 47. Straying in highway owner responsible for when, 48. When lawfully in the highway, 49. when not, 49. If injured by poor fence, result, 50. If trespassing, may be put in pound, 55. may be turned into highway, 55. owner may be sued, 55. 104 INDEX. CATTLE-BAEN, ■Wliat it includes, 23. CHILDKEN, Cannot pick up apples in the road, 32. CISTEElSr, Passes witli touse, 22. CLAMS, May be dug by the public, 91. COMPOST, Usually passes with the farm, 20. COKSENT, Mere consent never gives right of way, 36. COITTKACT, Result if laborer breaks it, 25. To work for more than a year must be in writing, 28. When not vaUd, result, 28. CONVEYANCE, When a court of equity will compel one, 8. CEOPS, Growing, pass with farm when, 20. CUSTOM, Validity in law, 17. DAMAGES, May be recovered of laborer when, 25. Caused by leaving gate open who is responsible for, 38. May be recovered by third person from owner of cattle when, 47. INDEX. 105 May be recovered of owner of trespassing cattle, 55. Must be paid on impounded animals, 57. May be recovered of owner of vicious animal known to be sucb, 60. Double, sometimes for bite of dog, 67. May be recovered of trespasser, 86. May be recovered of purchaser of berries picked by tres- passers, 91. "DEALER'S TALK," What is its value in eye of the law, 14. DECEPTIOK, No legal consequences attach when, 14. When seller is liable for, 15. DEED, Should always be recorded, 11. Must have seal of grantor attached, 11. A scroll sufficient in some states instead of seal, 11. Need not be witnessed, nor recorded, 11. What land it includes, 12. When it extends to low-water mark, 17. When it gives the exclusive right to seaweed, 17. When it includes to high-water mark only, 17. Includes growing crop when, 20. Need not mention buildings, 20. Same rules as to, apply to mortgages, 23. Usually includes to middle of road, 31. Need not mention right of way to a back lot to include it, 37. If given to railroad company, conveys the land in fee, 39: Bounded by railroad conveys to center of road-bed, 42. DITCH, Bules and rights as to, 81. 106 INDEX. DOG, May be used to drive out trespassing cattle, 56. Double damages given sometimes, if be bites, 67. Tbough usually peaceable, owner is responsible for his acts, 68. even if dog be licensed, 68. May be killed wben, 69. Safe on his owner's premises, 10. Must not be poisoned, Yl. No one has ownership in, in some states, 72. EASEMENT, Acquired by railroads in their road-bed, 39. EMPLOYEE, Ko set off against him when, 25. Improper treatment by an excuse for leaving, 26. If laborer leaves for good cause, must pay, 26. Cannot require unnecessary work on Sunday, 27. When he must pay for work done, 27. Use of harsh language by him, 27. May recover of hired man, damages the latter has cavis- ed, 74. Not liable for injuries by his man to fellow workmen, 75. Liable to his workmen for his own negligence, 76. ENTICEMENT, Person enticing liable therefor, 29. EPIDEMIC, In vicinity good excuse for leaving, 26. EXCUSES, What are sufficient for leaving, 26. FAMILY, If disturbed by a dog, he may be killed, 69. INDEX. 107 FARM, How to buy, 7. Oral bargain for not binding, 7. How far it extends, 12. What a deed of includes, 19. No right for stranger to wander over it, 36. Kailroads through, 39. FARMER, Owns half the road, 31. Cannot interfere with public travel in the road, 33. Liability for leaving things in the road, 34. Does not lose his title to his stray beasts, 63. May take damages by dogs from dog tax, 68. or may sue owner for double damages, 69. Liable for the injuries his men do, 73. Cannot use all the water of a stream, 80. Cannot flow land above his own, 81. May keep surface water on his own land, 82. or may turn it on to his neighbor's, 82. Should put up notice to trespassers, 86. Must not set spring-guns for trespassers, 87. Liable for damages to trespassers when, 87. May recover for poor seed, 96. and sometimes damages beside, 97. His liability on a note obtained by fraud, 99. FEUrCES, One seven feet wide is lawful, 15. Conveyed with the farm, 19. No one has a right to deface it, 32. On highway must be placed where, 34. Between neighbors where, 34. In front, must end where, 34. Along railroad must be maintained by the company when, 42. and when not, 42. 1G8 INDEX. FENCES, Adjoining owners must maintain in equal shares, 46. Proper legal height, 49. Proper materials, 49. 'What will answer for a, 49. Wire, responsibility for accident therefrom, 50. Division, may be placed one half each side of line, 50. Must be kept in repair throughout the year, 50. Difference as to, between railroads and individuals, 52. Duty of building one a statute duty, 52. Railroad, must be " suitable " merely, 53. If destroyed by hired man, his employer must pay dam- ages, T3. FENCING MATERIAL, If never had been attached to soil does not pass, 19. If had been once used, passes with farm, 19. FINE, May be imposed on owner of straying animals, 58. FIRE, Caused by locomotive sparks, liability for formerly, 43. liability for now, 44. One who makes it is responsible therefor, 17. FISH, In ponds belong to adjoining owner, 90. in navigable stream to public, 90. FORFEIT, When laborer forfeits wages, 24. None of wages, when 26. FRAUD, Actionable, and the contrary, 15. INDEX. 109 FRUIT, Stealing of, a crime, 86. What may be done to thief, 87. Belongs to the tree on which it hangs, 93. If it falls into neighbor's lot one may enter and pick it up, 94. On line tree belongs to both adjoining owners, 94. FtrENACE, If brick, goes with house, 22. If portable, some doubt, 22. GAS-FIXTUKES, Do not pass with house, 22. GATES, May be erected between highway and right of way, 38. GRASS, In the road who may cut, 31. HELP, Hiring of, 24. HENS, Neighbor's must not be killed, though in one's garden, 87. HIGHWATER MARK, Private ownership extends to, 17. HIGHWAY, Trespassing cattle may be turned into, 55. Wash from, may be turned on to farmer's land, 83. HIGHWAY SURVEYOR, Eights in the road, 31. HOP-POLES, If once used, pass with land, 19. 10 1]^ IKDBX. HOESE, Cannot be hitched to your trees in the road, 32. Owner may be liable for damage by, 59. Eun away, owner liable when, 62. Eesult if one buys a stolen, 63. Owner not liable for injury caused by when, 74. HUNTEE, Has no legal right in the wild animal hunted, 64. Owns what is caught in his traps, 65. Eesponsible for fires he may build, 77. Has no right to wander over farmer's land, 90. IMPEOVEMENTS, If made after mortgage belong to the land, 23. i]srsuEA]srcE, May be obtained by railroad on property along its route, 44. ISLANDS, In a river belong to whom, 15. JURY, Decide as to cause for leaving, 27. KEEPEK, Of a dog liable for damage, 69. KETTLES, Set in brick work pass with farm, 22. LABOE, What rate of wages due for, 24. Consequence of engaging to "for a year," 24. Entitles to payment when, 26. LABOEEE, Eesult of his leaving wrongfully, 24. INDEX. Ill If discharged by his own fault, 26. Excused by his arrest, 26. Result of his leaving with good cause, 26. Harsh language to him no excuse for leaving, 27. Quarrel with another no excuse for leaving, 27. When his contract to work is not binding, 28. If under twenty-one not bound, 28. Effect of his false statement of his age, 29. Under one form of contract may leave when he pleases, 29. Liable for a "strike," 30. Eesponsible to his employer for damages he has caused, 74. Cannot recover from master for injury caused by fellow- workman, 75. May recover of employer for latter' s negligence, 76. LAKE, Public have rights in a, 16. Boundary line at low-water mark, 16. LAND, Includes standing trees, 19. If wild, duty of fencing, 50. Manner and result of making it common, 51. Adjoining, may be used for building fence, 52. No right of way acquired in by twenty years use simply, 85. LAND-OWNER, May re-occupy abandoned road-bed, 41. Must keep his cattle off railroad track when, 42. Was bound to keep in his own cattle, 45. Must bear half expense of fencing, 46. Have common interest in division fence, 50. Of wild land, not obliged to fence, 51. Remedy for surface water turned on to his land, 83. If he pei-mits crossing his land no right of way acquired, 85. Does not own the shell-fish on the shore, 91. 112 INDEX. Cannot take away manure, 20. May remove his gas fixtures, 22. LETTER, Offer to sell by, 1. LIABILITY, Of an owner to two different purchasers, 10. LICENSE, To move building, does not relieve from liability, 32. LIGHTNING, Eire caused by no one responsible for, 78. LIGHTNING RODS, Go with buildings, 21. LUMBER, Of an old building goes with land, 20. MANTEL PIECES, Pass with house when, 22. MANURE, Passes with the farm ordinarily, 20. MILL, Cider, goes with the orchard, 23. MILL-POND, Boundary line is in middle of, 16. MONUMENTS, Control the length of boundary lines, 13. More important than number of acres, 14. INDEX. 113 MORTGAGEE, What lie may take under foreclosure, 23. MORTGAGES, Same rules apply as to deeds, 23. NECESSITY, Gives right of way, 35. NEGLIGENCE, As to vicious animals, what is, 62. In regard to fire renders liable when, 78. If none on part of signer of note he need not pay it, 99. NEIGHBOR, Cannot use one's well without permission, 32. Cannot pick fruit from one's overhanging tree, 93. NOTE, Must be paid to laborer when, 25. ORGAN-GRINDER, Liable for trespass when, 33. OWNER, Of trespassing cattle has no claim on one who drives them out of his field, 56. Liable for damage done by his stray cattle on highway, 60. Liable for damages done by vicious animal, 60. if done to one lawfully on his land, 61. Of vicious animal must keep him confined, 62. Of dog liable for double amount of damage caused by him, 67. Of hens can recover if they are killed by a neighbor, 87. PAYMENT, Result of paying by the month, 24. 10* 114 rNDBX. PAYMENT, Result -when nothing has been paid to laborer, 25. Must be made by railroad company when, 41. For stolen beast does not pass title, 63. PERSONAL PEOPEETY, Wood cut and corded up is, 19. PIGS, If root up the road, owner is responsible, 32. PIG-PEN, Cannot be put in the road, 33. POISON, Must not be given to dogs, 70. or other animals, 71. Must not be given neighbor's hens, 88. Must not be applied to neighbor's tree, 94. POND, Artificial, boundary line in middle of, 16. Natural, boundary line at low-water mark, 16. Of over ten acres public have rights in, 90. POUND, Trespassing cattle may be put in, 55. Proper method of putting animals in, 56, 57. Towns liable for not keeping in repair, 58. PRESCEIPTION, Gives right of way when, 35. and how, 36. PRICE, Consequences, if part be paid, 8. PUBLIC, Have superior rights in the road, 31. INDEX. 115 PUMPS, Part of the building, 22. PURCHASE, Of a farm, must be in writing, Y. Representations that will not excuse from, 14. PURCHASER, Released from bargain when, 14 PURCHASE MOISTET, When paid at rate of so much per acre, 13. RAILROADS, Acquire only an easement in their road-bed, 39. May cut trees which are in the way, 40. Can take only necessary land, 41. If abandoned land reverts, 41. Must maintain fences along it, 42. Liable for damage to adjoining owner's cattle when, 42. and when not liable, 43. Not responsible for defective fence, except to adjoining owners, unless negligent, 43. Liable for fires caused by locomotives, 44. May insure the property along its route, 44. Duties as to fences different from private persons, 52. Not liable for cattle killed, if unlawfully straying, 54. RANGE, Passes with house, 22. REDRESS, None for certain misrepresentations, 14. "REFUSAL," Dangerous to rely on, 8. 116 INDEX. EEMEDT, Often worthless against laborer, 29. Against one who entices laborer away, 29. REMOVAL, Crops or manure may be removed when, 20. EEPEESENTATIOKS, Of seller that will not make the sale invalid, 14. EETEACTIOlSr, Owner may retract offer at any time before acceptance and he is notified thereof, 1. EIVEE, Uunavigable, island in, 15. Boundary line is in middle of current, 15. Consequences when course changes, 16. EOAD, Middle of, the dividing line, 31. Eights in, 31. How public must use it, 33. If discontinued what becomes of the land, 34. SCEOLL, Used instead of seal in some states, 11. SEAL, Necessary on a deed, 11. SEASHOEE, "The fiats," to whom they belong, 16. When the grantee owns to low-water mark, 17. SEA-WEED, When it belongs exclusively to owner of shore, 17. Any one may take possession of it, 17. INDEX. 117 SEEDS, Are warranted to be wliat they are bought and sold, for, 96. If not warranted, liability may not attach to seller, 98. SELLER, Can take away loose boards, 19. SET-OFF, When laborer has no right to, 25. SEVERANCE, The collecting of manure into a heap may be a, 20. SHEEP, If worried by dog he may be killed, 69. Killed by dogs, owner of one dog liable only for those killed by his dog, 71. SICKNESS, A good excuse for leaving work, 26. SIKKS, Part of the building, 22. SNOW, May give right to traveler to turn out upon one's land, 33. SPECIFIC THING, Result of breaking engagement to do, 25. STATUES, Pass with farm when, 23. STOVE, Does not pass with house, 22. 118 INDEX. STREAM, Kights of proprietors on, 15. May be a sufficient legal fence, 49. Through farm, farmer may use, 80. Course on one's own land may be changed, 80. If obstructed, remedy of owner's above, 81. If navigable public may fish in, 90. STRIKE, Legal liability of parties involved, 30. SUNDAY, Unnecessary work need not be done on, 27. Necessary work must be done on, 27. TEAM, If driven by hired man, his employer is responsible when, 73. If borrowed by servant he is responsible therefor, 74. TIDE, Things washed up by, 17. TIMBER, Of an old building passes with land, 20. TIME, Result of not working out, 25. Important in fixing liability of employer, 74. TREES, If cut down and left where they fell pass, 19. If standing pass with land, 19. If in the road fruit belongs to whom, 32. In the road cannot be cut by private person, 32. On railroad's land belong to farmer, 40. On which bees light, who owns the bees, 64, INDEX. 119 Limbs overhanging division line may be cut off, 94. If on the division line both parties own it, 94. May be set out on one's own land, 95. TRESPASS, On land, what may be, 32. None, to turn out upon adjoining land, if highway is im- passable, 33. May be a crime, 86. "WAGES, Right to current rate, 24. Not forfeited when, 26. WAGONS, Cannot be left in the road, 31, 33. WALL, When boundary line passes along middle, 15. On highway must be placed where, 34. Between neighbors where, 34. WATER, Rights as to, 80. Surface, rights as to different from running water, 82. Underground, no ownership in, 84. WATER PIPES, Pass with house, 22. WAT, Right of, how gained by purchase, 35. by prescription, 35. by necessity, 36. Right of, gained for particular purpose only, 36. Right of, to a back lot, 37. Eight of, by necessity continues how long, 37. 120 INDEX. WAT, Eight of, may have gates placed across it, 38. When right of is given, who must keep in repair, 38. Must be located in a reasonable manner, 38. Only- the right of belongs to railroads usually, 40. Eight of must be acquired by adverse use, 85. WELL, If partly in the road, private property, 32. If dried up no remedy when, 84 WOOD, If cut and corded up for sale does not pass, 19. Cannot be left in the road, 33. If fired by locomotive spark, who was responsible, 43. who is now, 44. If cut by hired man, his employer is responsible, 74. WOOD-LOTS, Need not have a partition fence between them, 51. WORK, Sometimes need not be paid for, 25. On Sunday is not extra work, 27.