The Beasts of the Field
By C. K. ALLEN, Q.C. THE animal kingdom, to which so many of my readers belong (as G. K. Chesterton nearly wrote), is a very powerful realm in Britain. There is probably no country in the world where " dumb " animals (a strange epithet when applied to, say, nocturnal cats) are so well protected by law— which is all to the good; but there is also no country in the world where so many people make such fools of themselves over so many four-footed nuisances, large and small—and that, surely, is not so good.
There are many among us who seem to be more solicitous for quadrupeds than for bipeds; and, according to the present Lord Chief Justice, even Parliament appears to be of that mind. I quote from one of his judgements : "The law with regard to the trespass of animals is unsatisfactory, having regard to the mischief which they may do. In 1906, Parliament passed a Dogs Act under which the owner of a dog which bites sheep or cattle is liable, whether or not he knows the propensity of the dog, but a dog may still bite a human being and, if the owner can show that he did not know of its propensity, the owner is not liable. Apparently, Parliament thought that sheep require more protection than human beings. If . . . . a cow strays on to the neighbouring land and eats a few cabbages the owner is liable, but if a dog enters a neighbour's house and does damage by wrecking a room, the owner of the dog is not liable because it was laid down in 1699 (and I think earlier) that 'you shall not have trespass for the act of a dog'." Dogs are indeed the darlings of our law, and a whole volume could be written upon the special affection which our courts have shown them from ancient times.
But the horse too is well known to be a noble animal, and it has lately been revenging itself on the parvenu machine which has usurped its social status. In the case from which I have quoted, decided in 1943, the circumstances were all too familiar; a motorist had collided in the dark with horses which had been allowed to stray on the highway. The Court of Appeal felt bound to affirm, though with reluctance, the ancient rule that "there is no duty on the owner or occupier of land adjoining the highway to prevent animals on it from escaping on the highway "; but it expressed the hope that the House of Lords might some day overhaul a hoary rule of the common law which seemed inappropriate to modern conditions. Three years later, in a horse-and-bicycle collision which had occurred in 1944 in the black-out, the opportunity arose; but the noble and learned Lords not only reasserted a rule which they held to be deeply rooted in history, but seemed, on the whole, to come down on the side of the brutes rather than the angels. Much erudition was devoted to explaining how the rolling English drunkard had made the rolling English road, without liability for fence or hedge, and the general moral seemed to be that the beasts of the field, and their owners, could not be blamed if men were foolish enough to invent fast- moving vehicles. "The motorist," observed the late Lord du Parcq, "must put up with the farmer's cattle; the farmer must endure the motorist." • Encouraged by this Bill of Rights, a mettlesome mare in 1951 asserted her privileges dramatically by leaping over, or through, a hedge on to the petrol-tank of a passing motor- cyclist. True, this spirited animal only did what many of us have wished to do to motor-cycles; nor was it by any means a champion steeplechaser, for in a case in 1860 a learned judge stated that a bull had been known to leap an iron fence six feet high; but the motor-cyclist, being deficient in sporting instincts, considered that he had a grievance. It went unredressed, howeNer. We are not told what penalty the mare paid for her fun, but the motor-cyclist received not a penny, and had to derive what comfort he could from the miracle of having survived the encounter.
So the law stands today. An owner or occupier adjoining the highway is under no liability at common law to keep his animals in by hedges or fences, or to maintain them in any kind of repair, so far as users of the highway are concerned. If his beasts stray upon his neighbour's land, and there regale them- selves, he must make good the damage, and the beasts them- selves may be impounded. He must love his neighbour as himself, but a mere passer-by is not his neighbour. His fence, V. rotten and ruinous, may amount to an actionable nuisance if anybody on his lawful occasions—even a small boy who climbs upon it—is injured by it; but it need not keep his animals from straying on an arterial road. If he leads his beasts on to the road, he must manage them with reasonable discipline, but, even so, he seems to have considerable latitude; for example, there is nothing in the law at present to compel a person who is driving a flock of sheep or cattle along the highway on a dark night to carry a light. Even a market authority is under no duty to keep aninials in their pens. The criminal law has, for more than a century. taken a different view of the duty of the pastoralist, for, by Highway Acts dating from 1836, it has imposed penalties on those who allow cattle to stray on the highway. The deterrent, however, is trivial, being limited to five shillings per head per beast, with a maximum of thirty shillings. I know of one grazier with eighty-five convictions, which he evidently regards as an inexpensive occupational risk. His neighbours, and the motor- ing public, and even the magistrates, are of another opinion, but cannot enforce it.
The c4se is altered when the animal is known to have "a vicious or mischievous tendency." The owner, like the lady whose Little Precious is known to have a taste for human flesh and blood. may then be liable if he does not take pre- cautions. But vice in a quadruped seems to be as difficult a matter of moral judgement—and even more of evidence—as in a sinful man. The Leaping Mare, for example, besides being "an amazing jumper "—" in a manner quite unbecoming to a Shire mare," observed one learned Lord Justice—and "rather temperamental," and accustomed to run "with mouth abroad" at any stranger who tried to catch her, and blind- folded when out at grass, was found to be not vicious, but merely frolicsome. Vice means "a savage disposition, a propensity to attack people," not necessarily motor-cyclists only. A mere tendency to stray is not vice in a horse, what- ever it may be in us poor mortals.
It is announced that a committee has been appointed by the Government to examine this antique state of the law and to adjudicate between animal and machine. Difficulties lie ahead, for it does not seem practicable to impose everywhere in the country a duty to erect and maintain fences or hedges. Prob- ably no legislation, not even a set of Statutory Instruments, will teach wisdom to the dog on a hot scent, or the predatory cat, or the silly sheep; and, as for hens, it is well known that, even when all other points of the compass are open, moving wheels are a magnetic north to them. It may be that the gladiatorial contest between man and beast will never be com- pletely settled in the machine-age; but it would be at least some comfort to motorists to know that flying masses of horseflesh cannot with impunity descend upon them out of the blue, and still less out of the black.
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