In Laws v. R. R., 52 N. C., 468, Judge Battle says: “In England, where all, or nearly all, the lands were enclosed by the respective owners, the law requires that each proprietor shall keep his horses, cattle and other live stock on his own premises, and if he permits them to g’o upon the land of another, it will be a trespass for which he will be responsible.” lie proceeds to give an interesting .account of the change adopted in this country, by reason of the different “conditions of things,” concluding that, by the statutes requiring every planter to maintain, around his cultivated land, a fence of prescribed height, “general common, because of vicinage, throughout the State was established.” It was, upon this-ground, held that an owner of cattle was not required to fence them in and, therefore, not liable for damages done by them in going upon the lands of another. Judge Manly, in Jones v. Witherspoon, 52 N. C., 555, citing Laws' case, says that, by common usage, the right of general common became the common law of this State. -While this is true, it does not follow that the Legislature may not re-enact the common law or make that law the statute law of the State. If the condition, in respect to the agricultural system of the people so changes as to make it conducive to their interest to require all stock to be “fenced in” and relieve the land owner of the duty to “fence it out,” we can see no good reason why the Legislature may not by appropriate legislation do so, either in respect to the whole State or political divisions thereof. Eor the past twenty-five years, such has been the policy of the State, as evidenced by our legislation. This being true, we do not see why the Legislature, or when power is conferred upon them, the county commissioners, may not forbid stock running at large in the county, or any township thereof, and declare a mountain range, a creek or other natural political boundary a lawful fence, or the limit within which the law shall operate.
Certainly it is immaterial to the citizens of the county *549adopting sncli law that no natural or artificial obstruction is provided. If any one may complain, it is tbe people of tbo adjoining county or township. It is not very clear bow the defendant has any just ground of complaint that provision is not made for preventing stock from Yancey County coming into McDowell. He is charged with permitting his hogs to trespass -on his neighbors in McDowell. A fence between that county and Yancey could not possibly affect bim in respect to the right of his neighbors to require him to “fence in” his stock for their protection. It is only the people of Yancey County who would-be in a position to complain that their stock was fenced out by an imaginary line. The answer to them, however, would be that, if they wish a fence on the line, to keep their stock off the lands of the people of Mc-Dewoll, they must build one themselves. While it is usual for the counties or townships which adopt a “stock law” to build a common fence, it is not necessary, that they do so. Many creeks, swamps and other natural boundaries have been declared lawftil fences, without regard to their width or depth. The only possible reason why the validity of the statute and the order of the commissioners could be called into question by the Court, is that it is unconstitutional. If there was any doubt in regard to the power of the Legislature to declare the line a lawful fence, the defendant is not in a position, in this case, to raise it. St. George v. Hardie, 147 N. C., 88. The instruction of his Honor to the jury was correct. There is
No error.