Headen v. Rust

Citations

• 39 Ill. 186

Syllabus

<p>1. Stock—may rightfully rim at large. All persons have a right to permit their cattle to run at large on the highways and commons, except so far as they are prohibited hy legislative enactment.</p> <p>2. Close hust*be fenced—stock may run at large. The rule that, in order to maintain trespass for damage done hy stock, the owner of the close must' have it surrounded by a good and sufficient fence, as announced in Seeley v. Peters, 5 Gilm. 130, is still the law.</p> <p>3. Many acts of legislation since that decision was made show that the legislature has constantly recognized it as the law, and it has been so recognized and acted upon by the people of this State ever since it was announced in 1848.</p> <p>4. After such a decision as that in Seeley v. Peters has been recognized by the legislature and acquiesced in hy the people for such a length of time as eighteen years, it belongs to the legislature to change the rule, if the people Irish to have it changed.</p> <p>5. Rule modified as to railroads—on what principle. And though, as to railroads, the rule has been so modified that, where the roads are not bound to fence they have the right to run them trains, and stock on the track are trespassers, while owners may rightfully permit the stock to run at large, they taking their own risk, still this modification is on the principle that the public interest and convenience, for which such roads were mainly created, makes it their duty to run trains over such places, in the performance of which duty they are not liable, except for gross negligence, and does not affect the rule in ordinary cases.</p> <p>6. Division fences—common law rule. The common law rule requiring the owner of stock to keep it upon his own land has been recognized, in some cases in this State, as governing inside or division fences.</p>