“Mending Wall” and Negligence: How a Poem can Inform the Common Law

Samuel A. Thumma

doi:10.1515/jtl-2018-0012

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“Mending Wall” and Negligence: How a Poem can Inform the Common Law

Samuel A. Thumma

Published/Copyright: October 16, 2018

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From the journal Journal of Tort Law Volume 11 Issue 2

Abstract

Using selected lines from Robert Frost’s poem Mending Wall, this essay seeks to show how the poem can inform the common law of negligence.

Best known for its line “good fences make good neighbors,” Mending Wall involves a narrator recounting his relationship with a neighbor, and the neighbor’s calm persistence that a good boundary wall makes good neighbors. The poem describes how and why, each spring, they walk together to fix a rock wall that is the common boundary of their property. This essay seeks to make the case for how Mending Wall also can inform the common law of negligence.

After a discussion of how the author came to write the piece, the essay briefly discusses the context for, and some commentary about, Mending Wall, with the poem included in the Appendix. The essay then provides seven examples of how selected lines from Mending Wall can inform the common law of negligence. Starting with the adage that good fences make good neighbors, the examples help demonstrate when a legal fence needs to be solid and unyielding in delineating the elements of a prima facie negligence claim; when a fence provides an outer boundary for a negligence claim and when a fence is a boundary excluding a negligence claim; when a fence is not needed to define the boundary between types of remedies; how a fence implies a division of labor in what a judge decides and what a jury decides; that the outlier case can try to pull down a fence and, finally, how gaps in a fence are the grist for the mill that is the common law.

The essay seeks to show that Mending Wall can be used to help inform the common law of negligence, in certain respects when viewed in a certain way. It does so, the essay suggests, episodically. It provides glimpses and clues, not comprehensive directives, and offers general targets to focus on in the study of common law negligence.

Viewed in a concrete way, Mending Wall is about neighbors fixing a stone wall they share on a cold, early spring day. But it is much more than that. In these ways, as the essay suggests, Mending Wall can inform the common law of negligence.

Keywords: tort law; negligence

Acknowledgements

The author thanks Heather Marking and Laurie Anne Thorhaug for editorial comments on a prior version of this essay as well as Professor Ellen M. Bublick, Dan B. Dobbs Professor of Law, University of Arizona James E. Rogers College of Law, and her Spring 2018 Economic and Dignitary Torts class, who provided helpful comments and feedback on a lecture on this same topic. The views expressed are solely those of the author and do not represent those of the Arizona Court of Appeals.

Appendix

Mending Wall

Robert Frost

Something there is that doesn’t love a wall,

That sends the frozen-ground-swell under it,

And spills the upper boulders in the sun,

And makes gaps even two can pass abreast.

The work of hunters is another thing:

I have come after them and made repair

Where they have left not one stone on a stone,

But they would have the rabbit out of hiding,

To please the yelping dogs. The gaps I mean,

No one has seen them made or heard them made,

But at spring mending-time we find them there.

I let my neighbor know beyond the hill;

And on a day we meet to walk the line

And set the wall between us once again.

We keep the wall between us as we go.

To each the boulders that have fallen to each.

And some are loaves and some so nearly balls

We have to use a spell to make them balance:

‘Stay where you are until our backs are turned!’

We wear our fingers rough with handling them.

Oh, just another kind of out-door game,

One on a side. It comes to little more:

There where it is we do not need the wall:

He is all pine and I am apple orchard.

My apple trees will never get across

And eat the cones under his pines, I tell him.

He only says, ‘Good fences make good neighbors’.

Spring is the mischief in me, and I wonder

If I could put a notion in his head:

‘Why do they make good neighbors? Isn’t it

Where there are cows?

But here there are no cows.

Before I built a wall I’d ask to know

What I was walling in or walling out,

And to whom I was like to give offence.

Something there is that doesn’t love a wall,

That wants it down.’ I could say ‘Elves’ to him,

But it’s not elves exactly, and I’d rather

He said it for himself. I see him there

Bringing a stone grasped firmly by the top

In each hand, like an old-stone savage armed.

He moves in darkness as it seems to me~

Not of woods only and the shade of trees.

He will not go behind his father’s saying,

And he likes having thought of it so well

He says again, “Good fences make good neighbors.”

https://www.poets.org/poetsorg/poem/mending-wall (last visited July 3, 2018).

Published Online: 2018-10-16

Published in Print: 2018-10-25

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Articles in the same Issue

https://doi.org/10.1515/jtl-2018-0012

Keywords for this article

tort law; negligence