whom it rests must maintain the fence in a proper condition at all times,[1]and is not entitled to wait until he receives notice that it is out of repair. And he will be responsible should his neighbour's cattle be injured in consequence of its defective condition, as for instance, if they get through a gap and feed on the leaves of a yew tree on the adjoining premises, with fatal results.
Animals straying.—If, where there is no obligation to keep them out, animals trespass and do mischief, they may be distrained by the person on whose land they are trespassing, provided they are not actually under the control of the owner,[2] and may ultimately be sold if compensation be not paid for the damage done. Upon tender of sufficient compensation the animals must be given up by the person who seized them, if still in his possession, that is to say, if not previously sent to a public pound. If the owner tender a sufficient sum to cover the damage done, but the person distraining declines to deliver up the animals except upon payment of an extortionate amount, the owner may pay the amount demanded, and afterwards recover the excess in an action.
FIRE
Responsibility for Damage done by.—With regard to fires which are incident to the natural use of the premises, such as the ordinary fires in a house, or in a field for the purpose of burning weeds, liability only attaches where there has been a want of reasonable care. If, therefore, a person's property is injured in consequence of a fire on his neighbour's premises, he will not be able to recover any damages from him if the fire was the result of an accident or is incapable of being traced to any source.
This applies equally whether the damage was caused by the spreading of a fire already lighted or by a fire which arose from spontaneous combustion. Consequently where damage is caused by the burning of a rick, if it be shown that it ignited by reason of the negligent way in which it was put together, the owner will be liable.
Where, however, the use of fire cannot be considered as incident to the ordinary use of the premises, the person who introduced it will be liable for its consequences. Thus where a locomotive or traction-engine is used on a road, the person by whom it is used will be liable for any fire which may be caused by it. Steam tramway companies and railway companies obtain statutory powers by which they are given the right to use locomotive engines on their lines, the effect of which is to exempt them from liability for fires caused by sparks from their engines, provided they have taken all reasonable precautions. Leaving a heap of hedge trimmings, or similar matter, near the side of their line in dry weather, with the risk of then being ignited by a spark, would be evidence of negligence. On the other hand, if an adjoining owner is foolish enough to place his ricks close to a railway line he may lose any remedy he might otherwise have had.
Such is, and will be, the law until January 1, 1908, when the Railway Fires Act, 1905, comes into operation. By that Act it is provided that where damage is caused to agricultural land or agricultural crops[3] by fire from sparks or cinders emitted from an engine used on a "railway,"[4] the fact that it was used under statutory powers shall not affect the liability of the company in an action for damages, provided the claim in the action does not exceed £100. No action, however, will be maintainable unless within seven days of the occurrence of the damage notice of claim in writing, and within
- ↑ Vis major or act of God only excepted
- ↑ A dog within whistle is not under the actual control of the owner.
- ↑ "Agricultural land" includes market or nursery gardens, and plantations and woods and orchards, and any fences thereon, but does not include moorlands or buildings. "Agricultural crops" includes any crops on agricultural land, whether growing or severed, which are not led or stacked.
- ↑ "Railway" includes a light railway and a tramway worked by steam.
