— Yawt
III.
—
Liability of
Owners of Animals.
377
^ect: 2. nature for horses to kick human beings. Where a horse trespassed on to a higinvay and there kicked and injured a child, the owner Trespass bywas not liable in the absence of proof that he knew the horse was Animals, of a vicious nature (^y), for without such knowledge the damages are too remote, there being nothing to connect the trespass with the act of the horse kicking {Ji).
man
reclaims wild animals and puts them on his land, Damage by they trespass, for any damage caused by them auimals^^ it is their ordinary nature to commit. Thus where pigeons from a dovecot fly on to neighbouring land and eat the corn, their owner is liable in an action for the loss of the corn(?). Whether it is in the ordinary nature of hived bees to sting men or cattle (/t), or of dogs to chase and kill game {I), seems doubtful on the authorities, though it is difficult to resist the fact that everyone knows that they often do so. And an interesting question still open is for how long the owner of a reclaimed animal is liable after its It is presumably a question of fact as to whether the escape. animal has reverted to the wild state or not {m).
821.
he is which
If a
liable,
if
Sub-Sect.
2.
Trespass
from Highway.
822. An exception to the rule above stated exists in the case of trespassing from a highway, while lawfully there for the in purpose of passing and repassing and using it as a highway (n) such cases it is necessary to prove negligence, and in the absence of negligence the owner of the cattle is not liable for the damage (o). It is a risk a man takes who has property adjoining the highway, and the loss falls upon him if he does not take precautions by cattle
See also Hadwell v. Bighton, (g) Cox V. Burbidge (1863), 13 0. B. (n. s.) 480. [1907] 2 K. B. 345, where a cyclist who was upset by a fowl in the road was held not entitled to recover, (/<) Eemoteness of damage, it is suggested, is the true distinction between this case and the other horse cases, such as Lee v. Biley and Ellis v. Loftus Iron Co., notes [u] and (c), p. 376, supra; see per Erle, C. J., in the former case. Whether the action is for trespass or negligence, proof of scienter is necessary to make the damages a reasonable consequence where it is a human being that is kicked. {i) Dewell v. Sanders (1618), Cro. Jac. 490, where it was said that a dovecot is not a common nuisance, but that the judges of assize may take cognisance of " Three judges in this case argued that if pigeons come upon my land, I may it. kill them, and the owner hath not any remedy. But the fourth held the contrary, that the party hath jus propriefatis in them, for they are domestics, and have animum revertendi, and ought not to be killed, and for killing them an action lies but the other opinion is the best," says the reporter. It is not a statutory offence. See note (c), p. 369, ante, and Taylor v. Neiuman, there cited. (k) See note (p), p. 375, aide. (l) See Bead v. Edwards (1864), 17 C. B. (n. S.) 245, in which case scienter was alleged and proved and as to the important question of trespass of dogs, see
p. 395, post.
(m) See Brady v. Warren, [1900] L. E. 2 Ir. 632, where the defendant was held liable for damage done by park deer which had escaped some six years previously, and had wandered about uncontrolled ever since. Compare Mitcliil V. Alestree (1677), 1 Yentr. 295, per Twisden, J. {n) Per Darling, J., in Lvscomhe v. Great Western Bail. Co., [1899] 2 Q. B. 303, at p. 316, where it was held that a railway company is not bound to fence against straying and trespassing cattle, under s. 68 of the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20). (o) Per Lord Coleridge, C.J., in Til/ett v. Ward (1882), 10 Q. B. D. 17, at p. 20.
Negligence essential,
