In Ohio the rule is laid down as follows: “It has been repeatedly decided by the courts of this State that they will adopt the principles of the common law, as the rule of decision, so far only as those principles are adapted to our circumstances, state of society, and form of government.” Lindsley v. Coats, 1 Ham. 243; see also Penny v. Little, 3 Scam. 301.
Is the rule of the common law, relied upon by the appellant in this case, applicable to our situation, condition, and usage, as a people? Is it in accordance with our habits, wants, and necessities? As applied to this State, is it founded in reason and the fitness of things? The legislature has certainly not so regarded it. On the contrary, we hope to be able to show that what legislation we have clearly recognizes the opposite rule. At present, we are considering the question without reference to any legislative interpretation or action.
These same inquiries were substantially discussed in the case of Seely v. Peters, above referred to; and as we could not hope to answer them more satisfactorily than is there done, we adopt the language used in that case, the appropriateness of which, as applied to this State, will be fully appreciated when we reflect that in their resources and necessities, Illinois and Iowa are almost twin sisters. Both alike are agricultural States—both alike have large and extensive prairies—and are alike destitute of timber, as compared with the eastern and older States of the Union.
Says Trumbull, J., in delivering that opinion: “However well adapted the rule of the common law may be to a densely populated country like England, it is surely but ill-adapted to a new country like ours. If this common-law rule prevails now, it must have prevailed from the time of the earliest settlement of the State, and can it be supposed that when the early settlers of this country located upon the borders of our extensive prairies, that they brought with them, and adopted as applicable to their condition, a rule of law requiring each one to fence up his cattle? that they designed the millions of fertile acres stretched out before them, to go ungrazed, except as each purchaser from the government was able to inclose his part with a fence? This State is unlike any of the eastern States in their early settlement, because, from the scarcity of timber, it must be many years yet before our extensive prairies can be fenced; and their luxuriant growth, sufficient for thousands of cattle, must be suffered to rot and decay where it grows, unless settlers upon their borders are permitted to turn their cattle upon them. Perhaps there is no principle of the common law so inapplicable to the condition of our country and the people as the one which is sought to be enforced now, for the first time, since the settlement of the State. It has been the custom of Illinois, so long that the memory of man runneth not to the contrary, for the owners of stock to suffer them to run at large. Settlers have located themselves contiguous to prairies, for the very purpose of getting the benefit of the range. The right of all to pasture their cattle upon uninclosed ground is universally conceded. No man has questioned this right, although hundreds of cases must have occurred where the owners of cattle have escaped the payment of damages on account of the insufficiency of the fences through which their stock have broken; and never till now has the common-law rule that the owner of cattle is bound to fence them up been suffered to prevail, or to be applicable to our condition. The universal understanding of all classes of community, upon which they have acted by inclosing their crops and letting their cattle run at large, is entitled to no little consideration in determining what the law is; and we should feel inclined to hold, independent of any statutes upon the subject, on account of the inapplicability of the common-law rule to the condition and circumstances of our people, that it does not, and never has, prevailed in Illinois.”
The learned judge then proceeds to show that it is not necessary to assume that ground in the case before him, for the reason, as he says, that their entire legislation clearly shows that this rule of the common law never prevailed in that State. In like manner, we now propose to refer to some of our own legislation which, we think, will clearly show that it was never supposed to prevail in this State. [Here Wright, C. J., stated, and commented upon, various statutes.]
This brief reference to these several acts must be sufficient, in our opinion, to satisfy any mind that the legislature never understood that the rule of the common law prevailed in this State. We do not maintain that these provisions expressly change the common-law rule. And did we believe that this principle had, at any time, been well established in this State, we should perhaps hold that it had not been changed by these different statutes. Where, however, it is, to say the least, doubtful whether the rule contended for is in accordance with our situation, condition, and wants as a people, where for a series of years there has been no legislation recognizing the existence of such a rule, and where custom and habit have uniformly negatived its existence, we feel entirely justified in giving force to these acts which, if they do not expressly, certainly do impliedly, change the unwritten law.
Judgment affirmed.[[258]]
BEINHORN v. GRISWOLD
Supreme Court, Montana, July 14, 1902.
Reported in 27 Montana Reports, 79.
Pigott, J.[[259]] Action to recover damages for injuries alleged to have been caused by the negligence of the defendant. The complaint states that the defendant negligently left exposed a vat containing poisonous liquid; that by reason of such negligence certain cattle of plaintiff and of one Holm drank from the vat some of the liquid, and died from the effects of the poison; and that Holm assigned his demand for damages to the plaintiff. The answer puts in issue the allegation of negligence, and avers that the death of the cattle was caused by the carelessness of the plaintiff and Holm. The plaintiff secured a judgment, and the defendant moved for a new trial on several grounds, one being the insufficiency of the evidence to prove negligence on the part of the defendant. From the order denying a new trial the defendant has appealed.