Henry Billings Brown

“ So, if he lease a section of land adjoining an uninclosed section of another, and stock his own section with a greater number of cattle than it could properly support, so that, in order to obtain the proper amount of grass, they would be forced to stray over upon the adjoining section, the duty to make compensation would be as plain as though the cattle had been driven there in the first instance. ”

“ The request of defendant, taken in connection with the instruction given, presents the respective views of the law entertained by counsel upon either side, and upon which the case turned.
The rule of the common law was admitted to be that a landowner is not bound to fence his land against the cattle of others. The owner of such cattle must confine them to his own land, and will be liable for trespasses committed by them upon the uninclosed lands of others. ”

“ The defendant, upon the contrary, requested the court to charge that 'in Texas the law is that the owner of stock is not required to keep them in an inclosure, or to prevent them from ranging on the land of others; and that the owner of land trespassed upon by cattle cannot recover from the owner of the cattle damages for the trespass, unless his land is fenced;' and, further, 'that, to entitle the plaintiff to recover in this suit, you must believe from the evidence that the plaintiff's lands were fenced from those leased by defendant. ”

“ In this case the appellant, by means of a fence constructed or maintained by it, inclosed the lands of the appellee in such manner as to reap from it those benefits which, as a rule, are incident exclusively to ownership. ”