Page:Federal Reporter, 1st Series, Volume 4.djvu/885

 WARD V. P. & M. B. CO. 871 �10 Towa, 26S; Cooley on Torts, 337. Thia doctrine is recog- nized in the case of the Railroad v. Smith, 9 Heisk. 860, 865, as the effect of our fence laws. These cases were those of in jury to animais straying on the railroad, and the better rule seems to be that in this country it is not such contribu- tory negligence to allow animais to run at large as will exempt the railroad eompany from liability for injuring them. But it is carrying this doctrine much further than these cases justify, to hold that this privilege of permitting animais to run at large is a right whioh the law will protect to the extent of allowing damages committed by them on the owner's own crops, lest to refuse the damages would be to deprive her of the privilege of permitting them to run at large. The priv- ilege is only permissive, and the only effect is that the owner of animais is not liable as a trespasser if the lands on which they stray are not lawfully fenced. It gives no right of com- mon or depasture in the land. The animais are trespa?sers, but the owner of the land cannot recover of the owner of the animais for the trespass, except under certain conditions which the statute law has imposed. Knight v. Ahert, 6 Pa. St. 472 ; Railroad v. Rollins, 5 Kan. 167 ; Calkins v. Matthews, Id. 191; Herold v. Myers, 20 lowa, 378; Williams v. Rail- road, supra ; Railroad v. Skinner, supra. �But, be this as it may, it was the grossest negligence in the petitioner to turn her animais ont when she knew that they could and would pass the cattle-guards and destroy her crops. If she hàd had a contraot with the eompany to maintain the cattle-guards it would have been her plain duty to lessen the damages by keeping up the hogs and suing for their keep, or whatever other damage that would cause her. Moreover, she might have cleaned out the cattle-guards ancj charged the expanse of the process to the eompany, It is no answer to this to say that she would have been a trespasser. She probably would not have been, but until she made an effort in that direction, and was warned off, it was foUy to stand idly by and see her crops destroyed, with no effort made to save them. That course was suggested to her by Bome of the employes of the eompany, and she says herself ����