NOTES 423 Of the decisions in which recovery for injury by the trespassing animal in the absence of scienter was denied, Cox v. Burbidge,^^ which « is commonly cited as requiring scienter in case of an injury by a tres- passing animal/^ may be distinguished, as will be seen presently; Sand- ers V. Teape ^^ was an injury by a trespassing dog, and Bischoff v. Cheney ^^ an injury by a trespassing cat, so that they involve the ques- tion whether a dog or cat, going on lands by itself, may give rise to an action of trespass,^" while in Peterson v. Conlan^^ the plaintiff was but a licensee on the land (and so might well be held to take risks to which the owner and his invitees would not be subject), and the value of the court's discussion is impaired by its supposition that Rylands v. Fletcher,^ which it cites along with Losee v. Buchanan^ as a decision to the same effect, is an authority for requiring negligence as a basis • of liability. ; In Cox V. Burbidge, defendant's horse, while running at large on the ' highway, kicked plaintiff. It was held there was no liability without proof of scienter. No doubt this might be explained on the theory ^ that liability for trespass on land by animals is a historical anomaly, and for the rest liability must depend on proof of culpability in allow- , ing an animal to run at large when its known disposition made it rea- sonable to anticipate that someone would be injured. But such an explanation does not consist with the tendency of the English courts, as shown by Baker v. Snell,^ to insist on absolute liability in case of injuries by animals. And Cox v. Burbidge might be reconciled with the cases where the owner was held for injuries inflicted by the animals while trespassing on another's land by observing that so long as the horse was grazing by the roadside, even if a trespasser on the highway, if gentle it was in the ordinary run of things no danger to the general security. One who uses the highway takes the risk of many things which are normal incidents of general use of the highway .^^ Even if the horse was there wrongfully, the wrongful presence of a gentle horse may be a risk of the highway, when it cannot be said to be a risk taken by a landowner on his own premises. In the latter case the law re- quires the owner of an animal to keep his animal off of the land of others, where in the ordinary course of things they are sure to do some sort of damage, at his peril of answering for the damage actually done. Such is in effect the result of the latest case of the sort. In Theyer « 13 C. B. N. S. 430 (1863). " E. g., Pollock, Torts, 8 ed., 497. 18 SI L. T. N. S. 263 (1884). " 89 Conn. I (1914). 20 That trespass does not lie in such a case, Brown v. Giles, i C. & P. 118 (1823); Woolf V. Chalker, 31 Conn. 121, 128 (1862) (semble); Bischoff v. Cheney, 89 Conn. I (1914); Buck V. Moore, 35 Hun (N. Y.) 338 (1885); Van Etten v. Noyes, 128 App. Div. 406, 112 N. Y. Supp. 888 (1908); McDonald v. Jodrey, 8 Pa. Co. Ct. 142 (1890). See Read v. Edwards, 17 C. B. N. S. 245, 260 (1864). Contra, Chunot v. Larson, 43 Wis. 536 (1878). 21 18 N. D. 20s, 119 N. W. 367 (1909). 22 L. R. 3 H. L. 330 (1868). 23 SI N. Y. 476 (1873)- « [1908] 2 K. B. 352, 355- 28 Compare what is said in Tillett v. Ward, 10 Q. B. D. 17, 20 (1882).
