§ 213. No general rule as to fencing in stock. From the manifest impossibility of harmonizing these two propositions, that the common-law rule never was applicable, and had no force in the States where that doctrine has become stare decisis, and the converse, that the common-law rule is the law of the land, and the laws of the State upon the subject are but declaratory thereof, or give only cumulative remedies, as has been decided in other of the States, it results that the status of each State must be ascertained by regarding alone the rulings of its Court of last resort, where the matter has been clearly adjudicated.

§ 214. Statutes of several of the States as to fencing. -In the class of States where the common-law rule does not apply should be ranked California,1 Connecticut,2 Iowa, Kansas, Pennsylvania; 5 in the second class, Massachusetts, Maine,7 Vermont.8

In certain of the other States, direct statutory enactments exist, which are so far antagonistic to the common-law rule as necessarily to supersede it; thus, in Alabama, the law on the statute book reads: "If any trespass or damage is done by any animal breaking into lands not inclosed by lawful fence, the owner is not liable therefor." Similar provisions appear in the statutes of Georgia,10 Indiana, Michigan,12 New Jersey,13

11

29 Me. 307; Knox v. Tucker, 48 Me. 373; Bradbury v. Gilford, 53 Me. 99; James v. Tibbetts, 60 Me. 557.)

1 Commerford v. Duprey, 17 Cal. 308; Logan v. Gedney, 38 Cal. 581; Waters r. Moss, 12 Cal. 535.

2 Studwell v. Rich, 14 Conn. 295; Wright v. Wright, 21 Conn. 329.

Henry v. Dubuque, 2 Iowa, 288; Kennedy v. Same, Ibid, 521; Herrold v. Myers, 20 Iowa, 378.

Darling v. Rogers, 7 Kansas, 592; Larkin v. Taylor, 5 Kansas, 433. Adams v. McKinny, Addison, 258; Milligan v. Wehinger, 68 Penn. St. 235. Rust v. Low, 6 Mass. 94; Binney v. Hull, 5 Pick. 503; Thayer v. Arnold, 4 Met. 589.

Lord v. Wormouth, 29 Me. 282; Sturtevant v. Merrill, 32 Me. 62; Webber v. Clossen, 35 Me. 26; Perkins v. E. R. R. Co. 29 Me. 307; Knox v. Tucker, 48 Me. 373; James v. Tibbetts, 60 Me. 557.

8 Keenan r. Cavanaugh, 44 Vermont, 268.

Revised Code of Alabama, 1867, p. 282, Secs. 1282, 1283.

10 Code of Georgia, by Irwin, Lester & Hill, 1873, p. 244.

11 Stats. of Indiana, Gavin & Hord, Vol. 1, p. 342.

12 Laws of Mich. 1861, p. 294; Compiled Laws, 1871, pp. 300, 301.

18 Laws of New Jersey, Nixson's Dig. 4th Ed. p. 333, Sec. 10.

Texas,1 and Tennessee.2 In Minnesota, the statute law is peculiar; a lawful fence is defined, and a provision is made that "no damage shall be recovered by the owner of any lands for damage committed thereon by any beasts during the day-time, unless it shall be proven that the lands were protected, on the side where the breach or entry was made, by a lawful fence; but for all damage done in the night-time he may distrain and have damages.'

§ 215. State laws as to fencing against stock.-By the statutes of New York, occupants of adjoining lands are compelled to maintain division fences; and although there are no provisions directly providing that crops must be protected by lawful fences, the practical effect is much the same as though there were.4

Such appears to be the application of the common-law rule, as affected by statutory enactments, deducible from the decisions of the Courts, although from the earlier decisions it appears that, however plenary is the statute law in provisions protective of crops from trespass by animals, the injured party is not forced to rely on them, but may look also to his commonlaw remedy.5

In North Carolina, the general statute law is such that "every planter shall make a sufficient fence about his cleared land under cultivation." If his land is so protected, he may recover for damages done by trespassing animals; otherwise, not.

In March, 1871, this general law was so modified, as to certain portions of the State, that the question of "fence law” or "no-fence law" was left to be determined by the people through the local elections; so that if the majority of the votes cast was in favor of "no-fence law," the owner of cattle was mulet in damages for injury committed by his animals, whether the land was fenced or not.7

1 Paschal's Dig. 639, Sec. 3338 et seq.

2 Gen. Stats of Tenn. Compilation by Thompson & Steger, Secs. 1682-1685.

8 Stats. at Large, Minn. (Bissel) 1873, p. 568.

4 Revised Statutes of New York, 2d Ed. 326 et seq.

5 Holliday v. Marsh, 3 Wend. 142; Stafford v. Ingersoll, 3 Hill, 38; Wells . Howell, 19 Johns. 385; Ryan v. R. & S. R. R. Co. 9 How. Pr. R. 453.

6 Revised Code of North Carolina, 1855, p. 294, Sec. 48.

7 Laws of North Carolina, 1870-1, p. 282.

The general law, and exceptions therefrom for several of the counties, is the same in Virginia.1

Similar provisions for exemption of counties from the general law, by submission of the question of "fence law" or "nofence law," appear upon the statutes of Georgia and California.3

§ 216. Prescription to fence is recognized at common law as resulting from an assumption of the duty of fencing, and granting to the occupant of the adjoining lands the privilege of grazing cattle on his premises, without guarding them against trespassing upon the lands of him whose estate is charged with the grant. This grant is presumed, from lapse of time, generally, such as is prescribed by the Statute of Limitations as to real property, and that such a grant has actually been made, but the evidence of it has been lost by the lapse of time; and a covenant thus once established, either by prescription or by grant in usual form, runs with the land, binds the original covenantor, and all who hold under or take estate from him; so, where the agreement as to fencing varies from the duty imposed by statute as to division fences, the agreement of the parties supersedes, as to them, in relation to the subject-matter, the statutory provisions; their agreement becomes a covenant which thereafter runs with the land, and is an

1 Code of Virginia, 1860, p. 492. Acts of the several assemblies have established new, or altered the bounds of existing, exceptional districts, wherein the "no-fence rule" is the statute law; the first of these exceptions is indicated in the general law above cited; the last appears in the "Acts of Assembly," 1872-3, p. 256.

2 Code of Georgia, 1873, Sec. 1455.

8 Hittell's Dig. Vol. 2, Secs. 7241, 7245, et seq. It should be observed that the adoption of the Code of California does not affect the pre-existing acts in relation to lawful fences, estrays, and the trespassing of animals upon private property, as such laws are specially kept in force by the code. (Political Code of California, Sec. 18, Subdivision 23.)

4 Rider v. Smith, 3 T. R. 766; Thayer v. Arnold, 4 Met. 589; Hewlins v. Shipman, 5 Barn. & Cres. 221; Rust v. Low, 6 Mass. R. 90, in which Parsons, C. J., rendering the decision, said that then (more than sixty years ago) Massachusetts "had been settled long enough to allow of the time necessary to prove a prescription, and ancient assignments by fence-viewers, made under the late provincial laws; and also, ancient agreements made by the parties may have once existed, and be now lost by the lapse of time."

incumbrance within the meaning of a covenant to convey free of all incumbrances.1

An obligation to maintain in repair a partition fence may also exist by prescription. In the leading case of Rust v. Low, it was held that the owner of the cattle doing damage, by trespass on his neighbor's land, might justify by showing that the party complaining was bound by prescription to maintain the fence, and that he might prove it by ancient usage, and such is the doctrine to be deduced from the authorities cited, and the older English cases; although it would appear that the prescription must be specially pleaded.2

1 Boyle v. Tamlyn, 9 D. & R. 430; 6 B. & C. 329; Blain v. Taylor, 19 Abb. Pr. R. 228; Bronson v. Coffin, 108 Mass. 175.

2 Holbatch v. Warner, Cro. Jac. 665; Potter v. Parry, 7 Weekly Reporter, 182; Howell v. Salisbury, 2 Young & Jervis R. 391. "The owners of adjacent lands may become bound, by prescription, to maintain specific portions of their partition fence." (Harlow v. Stimson, 60 Me. 347.)

$ 225.

§ 226.

§ 227.

Fences which are as efficient as lawful fences.
Obligation of coterminous proprietor as to fencing.
Owner of uninclosed lands need not join in fencing.
Division fence on either side of water-course.

§ 228.

$229. Fence-viewers and their duties.

§ 230.

Mode of acquiring jurisdiction by fence-viewers

§ 231. Award of fence-viewers a lien on land.

$232. Fence-viewers to assess damages done by animals.

§ 217. States may prescribe what shall be lawful fences. The right to use one's own land as one chooses, with'out interference by the law, at first glance appears to be inherent to the ownership of real property, and thence reasoning, it would seem that the fencing of one's field could in no wise, under our system of laws, be enforced, or the mode of inclosing land dictated to its owner. Such is the result of a superficial view of the subject; but a more just conclusion is arrived at by considering that no citizen has enjoyment of property other than by the protection of the law, and even of real estate; his possession is only maintained by submission to the terms upon which such protection is accorded to him. Self-evident as these propositions may be, so late as 1869 they are found to have been controverted, and the constitutionality of legal enactments in the premises has been seriously contested. The result, however, has been that it may be regarded as settled that the constitutional power over the citizon by the State is such that it may prescribe in what manner he may use his land to the ex