Cattle
generally stray and damage cultivated land when they get upon it.
They only exceptionally hurt human beings.
I need not recur to the possible historical connection of either
of these last forms of liability with the noxoe deditio, because,
whether that origin is made out or not, the policy of the rule
has been accepted as sound, and carried further in England within
the last few years by the doctrine that a man who brings upon his
land and keeps there anything likely to do mischief if it escape,
must keep it in at his peril. /1/ The strictness of this
principle will vary in different jurisdictions, as the balance
varies between the advantages to the public and the dangers to
individuals from the conduct in question. Danger of harm to
others is not the only thing to be considered, as has been said
already. The law allows some harms to be intentionally inflicted,
and a fortiori some risks to be intentionally run. In some
Western States a man is not required to keep his cattle fenced
in. Some courts have refused to follow Rylands v. Fletcher. /2/
On the other hand, the principle has been applied to artificial
[157] reservoirs of water, to cesspools, to accumulations of snow
and ice upon a building by reason of the form of its roof, and to
party walls.
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