Papers Of Abraham Lincoln

In force Jan.[January] 27, 1835.

AN ACT to amend “An act regulating Enclosures”.
1

Owners of animals breaking lawful fence, liable for damages.

Sec.[Section] 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That if any horse, mare, gelding, colt, mule or ass, sheep, lamb, goat, kid, bull, cow, heifer, steer, or calf, or any hog, shoat or pig, shall break into any person’s enclosure, the fence being good and sufficient, the owner of such animal or animals, shall be liable in an action of trespass, to make good all damages to the owner or occupier of the enclosures, for the first offence single damages only, and ever afterwards double the damages sustained.

Sufficiency of fence to proven on trial.

Sec. 2. Be it further enacted, That the condition of the fence at the time the trespass was committed, may be proven upon trial, and that complaint made by the party injured before any justice of the peace of the county wherein such trespass shall be made, such justice is hereby authorized and required to issue a summons without delay to

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three respectable householders of the neighborhood, no ways related to either of the parties, nor interested concerning the trespass, reciting the complaint and requiring them to view the fence where the trespass is complained of, and their testimony, in such case, shall be good evidence touching the sufficiency of the fence.

Persons injuring animals, when an unlawful fence, liable for the same.

Proviso.

Sec. 3. Be it further enacted, That if any person injured for want of such sufficient fence, shall hurt, wound, kill, lame or destroy, or shall cause to be hurt, wounded, killed, lamed or destroyed, by shooting, hunting with dogs or otherwise, any of the aforesaid animals, he or she so offending, shall satisfy or pay the owner of the same, the damages with costs, recoverable as aforesaid: Provided, That if the party liable to damages as aforesaid, in either case, will abide and pay what may be deemed reasonable by three neighbors, indifferently chosen to assess the same, it shall be a bar against such suit.

Owner to be notified of animals trespassing.

Sec. 4. Be it further enacted, That all animals trespassing, the owners of the same (if known) shall be notified thereof, and if they shall refuse to secure the said animals and prevent their trespassing, the persons on whom the trespass was committed, shall be authorized to secure the same, supplying the aforesaid animals with provender and water, for which they shall receive a compensation from said owner: Provided, That if said animals shall receive any abuse or damage from said persons, they shall be barred from any compensation for the aforesaid services.2

Part of law repealed.

Sec. 5. Be it further enacted, That the first and second sections of the act to which this is an amendment, be, and the same are hereby repealed.3

This act to be in force after its passage.

Approved, Jan. 27, 1835.

1William Moore introduced HB 53 in the House of Representatives on December 24, 1834. On December 26, the House referred it to a select committee. The select committee reported back the bill on January 9, 1835 with an amendment, in which the House did not concur. The House passed the bill on January 12. The Senate passed the bill on January 22. On January 27, the Council of Revision approved the bill and the act became law.
Illinois House Journal. 1835. 9th G. A., 1st sess., 115, 158, 161-62, 255, 273, 357, 389, 392, 400; Illinois Senate Journal. 1835. 9th G. A., 1st sess., 226, 252-253, 259-60, 268, 307, 335, 348.

2Early Illinois farmers commonly turned livestock loose to graze freely on the prairies in mild weather. Fences were used to keep animals out of crops rather than to keep animals in an enclosure. These open-range methods of livestock raising were common into the 1850s and in some areas continued until the 1870s, when the advent of inexpensive, durable barbed wire made possible the fencing of large tracts of grazing land.
Henry Campbell Black, ed., Black’s Law Dictionary, 6th ed., (St. Paul, MN: West Publishing, 1990), 552; Paul C. Henlein, Cattle Kingdom in the Ohio Valley, 1783-1860 (Lexington: University of Kentucky Press, 1959), 19, 62-64; Allan G. Bogue, From Prairie to Corn Belt (Chicago: University of Chicago Press, 1963), 73-79, 140.

3In the original law, the first section specifically stated what constituted an enclosure in good condition. The second section stipulated that proof of trespass was determined “by the view of two persons for that purpose appointed by the county commissioners.” Sections 3 and 4 are original to the new act.
“An Act Regulating Enclosures,” 20 February, 1819, Laws (1819), 23-24.