CHAPTER XII. CATTLE. § 144. § 145. § 146. Special laws for protection of cattle from disease. § 144. Special statutes for the protection of cattle from disease have, at various times, been deemed requisite by the Congress of the United States. "An Act to prevent the spread of foreign diseases among the cattle of the United States," was duly passed December 18th, 1865, providing, in terms, "that the importation of cattle be and hereby is prohibited." Section 2 of the act continues in force the foregoing provision until proclamation given by the President, for thirty days, shall declare that “no further danger is to be apprehended from the spread of foreign infections or contagious diseases among cattle." 1 Another act, passed March 6th, 1866, forbids the importation into the United States, from any foreign country, any live cattle, or hides of dead cattle, until the Secretary of the Treasury or President shall give public notice or proclamation that no danger from such importation of infection exists.2 In New Hampshire, provision by statute is also made, to the effect that whenever any dangerous or troublesome disease prevails among cattle, the governor may appoint a board of five commissioners to make due examination in the premises, and prohibit the introduction into, or transportation through, the State of cattle affected by infectious diseases.3 1 U. S. Statutes at Large, Vol. 14, p. 1. 8 Stats. of New Hampshire, 1867-71, p. 524. 2 Ibid, pp. 3-4. By the statute law of Iowa, under the title of "An Act to prevent the importation of Texas or Southern cattle, and the spread of the so-called Texas or Spanish fever among the cattle of Iowa," it is provided that it shall not be lawful for any one to bring into that State, or to have in his possession within the said State, any Texas, Cherokee, or Indian cattle, except such as, at the time of the passage of the act, were in the State, and those must be so guarded as to prevent any disease being spread by them.1 In several of the other States, there are similar statutes, of a quasi-police character, for the prevention of the introduction of cattle affected by diseases of an infectious character. In some, it is allowed to kill any animal so diseased as to become a source of danger to other cattle; and in other States, as in Missouri, he who has diseased or distempered animals must so restrain them as to guard against spreading the ailments to which cattle are liable, and especially that commonly known as Texas or Spanish fever, and in other States, as, for example, Massachusetts, the disease "pleuro-pneumonia" among cattle.2 § 145. Effect of laws for protection of animals from contagion. The general scope and tenor of these statutes for the protection of cattle is not alone by the appointment of boards of examiners, with plenary powers in the premises, to extirpate disease by the destruction of diseased animals, and 1 Laws of Iowa, 1861 to 1868, p. 272. 2 Missouri Stats. by Wagenar, Vol. 1, p. 135; Ibid, 251; Stats. at Large of Minnesota, Bissell, Vol. 2, 1873, p. 1102; Compiled Laws of Michigan, Vol. 1, 1871, p. 569; Supplement to Stats. of Massachusetts, 1860-66, p. 34; Ibid, p. 41; Ibid, p. 43; Ibid, p. 78; Ibid, p. 123; Genl. Stats. of Kentucky, 1873, p. 178; Ibid, 348; Genl. Stats. of Kansas, 1868, p. 1013; Ibid, 1872, p. 387; Ibid, 1873, p. 262; Revised Stats. of Maine, 1871, p. 221. "The municipal officers of towns, in case of the existence of the disease called long murrain, or pleuro-pneumonia, or any other contagious disease, shall cause the cattle in their towns infected, or which have been exposed to infection, to be secured or collected in some suitable place or places therein, and kept isolated; and, when taken from the possession of their owners, one-fifth of the expense thereof is to be paid by the town, and four-fifths at the expense of the State, such isolation to continue so long as the existence of such disease or other circumstances may render it necessary; or they may direct the owners thereof to isolate such cattle upon their own premises, and any damage or loss sustained thereby shall be paid as aforesaid." (Genl. Stats. of New York, 1867-70, p. 434; Ibid, 105; Genl. Laws of Oregon, 1845-64, p. 644; Genl. Laws of Ohio, 1868, p. 11; Laws of Pennsylvania, 1700-1870; by imposing penalties upon the introduction of cattle affected by contagious distempers, or by stringent regulations to the same end, but, as in the language of the Kentucky statutes, "the owner of any distempered cattle who shall permit them to run at large outside of his inclosure, or shall drive them into or through any part of this commonwealth, (Kentucky) unless it be from one part of his inclosure to another, shall forfeit and pay the sum of ten dollars for each head; and when such cattle shall die, the owner thereof shall cause them to be buried; and if he fail, he shall be fined five dollars for each offense." 1 From these stringent rules imposed by special legislation, it would naturally be supposed that the general law would impose correspondingly severe restrictions, but such is not wholly the case. Keeping cattle which are affected by an infectious disease is not, of itself, an act of culpable negligence. The owner cannot be held responsible for the communication of the disease to other animals, unless it appear that there was some fault on his part other than the mere keeping of the animals on his premises; nor does the fact that his neighbor keeps, to his knowl edge, healthy animals in his field adjoining, alter the case.2 The Purdon's Dig. by Brightly, Sec. 1417; Genl. Stats. of Rhode Island, 1872, p. 178; Genl. Stats. of Vermont, 1870, p. 670, Sec. 27; Stats of Wis. Taylor, 1871, p. 800, Secs. 4, 5, and 6; Code of W. Virginia, 1868, p. 240, Sec. 44.) 1 Statutes of Kentucky, 1873, p. 178. 2 Shearman & Redfield on Negligence, Sec. 133; Fisher v. Clark, 41 Barb. (N. Y.) 329. This action was brought by the plaintiff, to recover damages upon the following facts: The parties were farmers owning adjoining farms; each had a flock of sheep; those of the defendant had a contagious disease called the scab, and the facts of the disease and its character were known to defendant; the defendant sent word to plaintiff that he intended to turn his flock of diseased sheep into the field adjoining that wherein plaintiff had his healthy flock; against this plaintiff remonstrated, and defendant promised to forego his said intention, but did not keep to this agreement, but returned to his original intention, and, without notice to plaintiff, turned into his field, adjoining plaintiff's pasture lot, wherein were his healthy sheep, the diseased sheep; the fences were not "sheep tight"; the lambs and some of the sheep from the affected flock got among plaintiff's sheep, and, as the natural result, the healthy flock of plaintiff became diseased, and largely damaged in their market value. On appeal, the decision was adverse to the right of recovery. By the Court, E. Darwin Smith, J.: It is well settled that every man has the absolute right to use his own property as he pleases, for all the purposes to which such property is usually applied, without being answerable for the consequences, provided he exercises proper care and skill to prevent any unnecessary injury to others. (4 Coms. 202.) This right to use his property as he pleases is unlimited and unqualified, up to the point where the particular use becomes a nuisance. (22 Barb. 297; Picard v. Collins, 23 Id. 444.) The complaint in this action, before the justice, stated that the defendant, while the plaintiff was occupying adjoining land to his for the pasturage of a flock of sheep, turned into his lot, adjoining, a flock of sheep which he knew had a contagious disease, known as the scab, by reason of which the plaintiff's sheep took the disease, and he sustained damage. The gravamen of the complaint is, that the defendant, knowing that the plaintiff had a flock of sheep running in his lot, turned his own sheep, having the scab, a contagious disease, into an adjoining field on his own farm. There is no allegation of negligence, carelessness, or of a malicious intent to injure the plaintiff. The justice must have held, upon the complaint, that this act of the defendant gave to the plaintiff a right of action to recover to the extent of the injury sustained; that is to say, he must have held, and that is the claim, that simply turning his own sheep, having an infectious disease, into his own lot adjoining a lot of the plaintiff's, occupied with sheep, was unlawful, or such an act of wrong or negligence as gave to the plaintiff a legal cause of action for any injury sustained. To maintain an action there must be a legal injury, an invasion of some positive, certain, legal right. It could be no violation of the plaintiff's rights for the defendant to occupy his own land in his own way, unless he created a nuisance thereon. Pasturing sheep having an infectious disease was not a nuisance. It was and could be no injury to the plaintiff unless he suffered his sheep to take the contagion by permitting them to come in contact with the defendant's sheep. Each party had a right to use his own field to pasture his sheep. If the defendant's sheep had infectious disease, infectious only to sheep, he had the same right to have the same in his own field as the plaintiff had to permit his sheep to run in the adjoining field, exposed to take such disease. A person sick with a contagious disease is not obliged to abandon his own house to prevent the spread of such disease. A house occupied by persons having an infectious disease is not a nuisance. (2 Barb. 104.) It is not pretended that the disease of the defendant's sheep was a nuisance. They did not render the enjoyment of life or property uncomfortable, (Fish v. Dodge, 4 Denio, 311) or endanger the health of the neighborhood. (9 Paige, 575; 3 Barb. 157.) Nor were they offensive to the senses, like a slaughter-house, or gas-works, or swine-sties, or limekiln, or a livery-stable, or a tannery. (17 Barb. 654; 22 Id. 312.) There is no basis to sustain the action on the ground of negligence; for the defendant invaded no legal right of the plaintiff. The principle of the maxim sic utere tuo, etc., will not sustain the action, according to the decision of the Court of Appeals, in the case of The Auburn and Cato Plank Road v. Douglass, 5 Seld. 449, where it is held that this principle only applies when one owns a tenement which is subject to the servitude of another tenement, or has an easement in another's land, or some fixed legal right or interest therein. The same case also decides that an action will not lie, in such case, on the ground that the defendant acted maliciously. The evidence in the case would, perhaps, have furnished some ground to raise such a question of fact, although the right of action in the complaint was not based upon any such grounds. But the case last cited holds that when the defendant has no legal right or interest in the plaintiff's premises, or casement, or claim thereto, it is immaterial what may be the motives of the proprietor for dealing with his property in any particular way. The same principle was asserted in Mahan v. Brown, 13 Wend. 261, and in The Newburgh Turnpike Co. v. Miller, 5 John. Ch. R. 101. In Franz v. Hilterbrand, 45 Missouri, 122, plaintiff owned and worked on his place horses which appeared to have the glanders; the neighbors, for safety to their animals, themselves, and families, shot the diseased horses, and the action FARM-13. keeping of diseased animals on a person's own ground by him who owns the land, is not such an act of negligence as would render him liable in damages to the owner of other animals, which, being healthy, come upon the premises, and from the dis cased cattle take the malady, even where it is no trespass for the healthy animals to come, if the owner of the animals which are healthy is duly warned of the danger.1 § 146. Sale of cattle affected by contagious disease.— If one sells diseased cattle, fraudulently representing them to be free from infectious disease, when, in truth, they are so diseased, or if one sells such as are so affected and fraudulently conceals from the buyer the fact of their being so unhealthy and dangerous, he is held to a strict accountability. If property is sold for a particular purpose, or to be used in an especial manner, and the vendor is aware of that fact, he must be deemed, in making fraudulent representations, to have was against them for damages for so doing. The Court held that "in so doing they acted from a sincere but mistaken belief that they had the right to enter the plaintiff's premises and abate what they deemed to be a nuisance and source of danger; they acted from good, but mistaken and unjustifiable motives," and defendants were held liable in compensatory but not in exemplary damages. But in Mills v. N. Y. & H. R. R. Co. 2 Robertson's Reports, 326, it was held that, conceding the right to use one's own premises as a hospital for diseased horses, a person must not turn such out on the highway, permit them to drink at a public trough, or otherwise jeopardize his neighbors' animals; that the owner of animals, which he is aware have a contagious disease, must exercise all the care that a prudent man naturally would, or a rightful regard for the interests of others requires, such as placing his diseased animals so remote from a partition between his stable and that of his neighbor as to render contact with his neighbor's animals impossible. 1 By Walker v. Herron, 22 Texas, 55, it appears that the keeping of diseased animals on an open pasture which belonged to him, but to which animals which belonged to other persons also came and habitually grazed upon, by defendant's tacit consent, was not actionable; that plaintiff, whose stock took, from defendant's animals, the disease, could not recover damages therefor, inasmuch as defendant had warned him of the danger. But in Barnum v. Van Dusen, 16 Conn., which was an action for trespass for the entry of diseased animals, it was held, and such appears to be the rule, that in trespass for diseased cattle damage from infection may be stated in aggravation. In this case, defendant's sheep, which were diseased, broke into plaintiff's close, and carried to his sheep the malady, which was infectious; many of plaintiff's sheep died from the disease, and he was held entitled to recover, as damages on trespass quare clausum frigit, the loss suffered in his flock; and also, it was held that the defendant's knowledge of the disease might properly be considered by the jury in estimating damages. |