Macdonald v Ululoloa Dairy Company Ltd [1955] SamoaLawRp 1; [1950-1959] WSLR 31 (31 March 1955)

[1950-1959] WSLR 31

HIGH COURT OF WESTERN SAMOA

ALEXANDER MACDONALD

v

ULULOLOA DAIRY COMPANY LIMITED

HIGH COURT, Apia. 1955. 27, 28, January; 24, 31, March.
MARSACK C.J.

Cattle trespass - damage to property - faulty state of defendant’s fence - negligence of plaintiff in felling trees damaging fence - damages apportioned.

While the obligation to keep cattle in lies in general upon the owner of cattle who is responsible for any damage they may do if they escape and trespass on another’s land, this is subject to the exception that if the neighbouring owner himself causes damage to the fence and thus permits the escape of cattle, he cannot complain of the trespass.

Park v Jobson [1945] 1 All E.R. 222 referred to.

Judgment for plaintiff.

Phillips, for plaintiff.
Jackson, for defendant.

Cur. adv. vult.

MARSACK C.J.: The evidence was taken on 27th and 28th January, and written argument was submitted on 24th March. An inspection of the ground was made by the Court after evidence was heard. Two Samoan judges were present throughout the proceedings, and I have consulted them on all questions of fact.

The plaintiff and defendant own adjoining properties. The defendant company depastures a number of cattle on its property, which is fenced to keep the stock from trespassing. Notwithstanding the fence, the defendant’s cattle wandered on to the plaintiff’s property on several occasions during the period covered by the evidence, and did damage which the Court, on the evidence and from the inspection of the property, fixes at £65.

The plaintiff alleges that the trespass of the cattle was entirely due to the faulty state of the boundary fence arising from lack of maintenance and repair. The Managing Director of the defendant company submits that the trespass was entirely due to the breaking down of the fence by the felling of 3 trees across it, by servants of the plaintiff. After hearing evidence and inspecting the fence-line and the adjoining land, the members of the Court are of opinion that some of the acts of trespass were due to non-repair of the fence by the defendant, and some were due to the negligence of the plaintiff, through his servants, in breaking down the fence by felling trees across it. As it appears necessary to determine how much of the damage was caused by acts of trespass due to non-repair by the defendant and how much by acts of trespass due to felling of trees, the Court finds that three-fifths was attributable to the first cause and two-fifths to the second.

The law as to liability for cattle trespass in cases such as this clearly set out in the judgment of Lord Greene M.R. in Park v Jobson [1945] 1 All E.R. 222, to which I am referred by both Counsel. The obligation of keeping his cattle in lies in general upon the owner of the cattle, who is responsible for any damage they may do if they escape and trespass on another’s land. That principle is however subject to the exception that if the neighbouring owner himself causes damage to the fence and thus permits the escape of the cattle, he cannot complain of trespass. As Lord Greene M.R. points out, that may be put on one of two grounds: either leave or license (as contended here by the defendant) or that the trespass by the cattle was the direct result of his own wrong.

In this present case the Court has found that there were several acts of trespass, some due to the fault of the defendant and some to the fault of the plaintiff. Applying the above principles I am of opinion that the defendant is liable to the plaintiff only for the acts of trespass due to his non-repair of the fence. These, as I have already stated, the members of the Court consider to have caused three-fifths of the total damage, namely £39.

The plaintiff therefore will have judgment against the defendant company for the sum of £39, with costs, disbursements and witnesses’ expenses to be fixed by the Registrar.