John Gooch vs. Jesse Stephenson, 13 Me. 371

The action was continued for advisement, and the opinion of the Court was afterwards drawn up by Weston C. J. As the law stood, prior to the separation, this action was maintainable. The cases of Low v. Rust, and of Stackpole v. Healey, cited for the plaintiff, are decisive upon this point. But the law as it then stood, has been changed.

The statute of 1821, revised laws, ch. 128, § 6 provided, that no action of trespass, quart clausum fregit, should be maintained against the owner of neat cattle, breaking into a close from the high way or commons, where the fence of such close was not good and sufficient, provided such neat cattle were, at the time lawfully going at large on such commons or highways. The law however was left unchanged, with regard to cattle escaping from adjoining fields ; and this action might still have been maintained at common law, notwithstanding the statute of 1821. Little v. Lothrop, 5 Greenl. 356.

Then came the statute of 1834, ch. 137. The third

section provides, that no action of trespass shall be maintained against the owner of cattle, breaking into the inclosure of another, through an insufficient fence ; such cattle being lawfully on the opposite side thereof. In this predicament stands the case before us. The defendant’s cattle, being lawfully upon the opposite side of the fence, through the insufficiency thereof, broke into the plaintiff’s inclosure. We have been referred to many cases, illustrating the principles upon which statutes should be construed, to which there is very little occasion to resort.

The statute in question is too plain, direct and positive, to leave room to escape the force of its terms, by any technical tules of construction. If a statute gives merely a new remedy, where one before existed at common law, it is cumulative ; and the party injured is at liberty to pursue either. And where a statute gives the same remedy, which the common law does, it is merely affirmative ; as in that part of this section, which allows the party injured to impound or maintain trespass.

But this does not affect or qualify the prohibitory part, which denies and withholds the remedy, under certain circumstances, where it existed before at common law. It has been insisted that justice and the security of rights, is best promoted by maintaining the remedy, as it before existed; but that is an argument, which addresses itself to the legislative power, and not to the judicial, whose duty it is to ascertain and give effect to what the legislature, within the limits of the constitution, have declared.

If a party will surround his inclosure with a sufficient fence, and the cattle of others break in upon it, the law affords him adequate remedies. The inhabitants of unincorporated places, may not have the full benefit of the laws, in relation to partition fences. They may have to rely upon such equitable arrangements as may be dictated by the mutual interests of adjoining owners. The plain provisions of a general law are not to be defeated, or explained away, because they may operate less favorably upon a small portion of the community.

It is urged, that if the statute, upon which the defendant relies, forbids the remedy sought in this case, that part of it is unconstitutional. If it had authorized one man to interfere with the lands of another, it might be liable to this objection. But a party is liable to an action, who enters himself upon another’s grounds, or who turns on his cattle. And if cattle, lawfully on adjoining lands, stray where they have no right to go, they may be driven off.

Or the owner of land may exclude the cattle of others, by sufficient fences, and if these are violated, he may seize and impound cattle doing damage, or maintain trespass against their owners. It was for the legislature to determine what protection should be thrown around this species of property ; What vigilance and what safeguards should be required at the hands of the owner ; and where he might invoke the aid of courts of justice. They have no power to take away vested rights ; but they may regulate their enjoyment.

Lands in this country cannot be profitably cultivated, if at all, without good and sufficient fences. To encourage their erection, it is undoubtedly competent for the legislature to give to the owners of lands thus secured, additional remedies and immunities. We perceive nothing in the law, which violates or impairs the constitution ; and, in our judgment, the plaintiff’s action cannot be maintained. Nonsuit confirmed.