tent of imposing upon him the burden of keeping it inclosed in a particular manner, before he can claim protection under the law from the ravages of his neighbor's stock. The legislature may make such laws as are requisite properly to define the relative duties of the parties one to the other.1

§ 218. Statute laws control in partition fences.-From the frequency with which statutory enactments as to division fences occur in the laws of the several States, it would appear that the fact had been forgotton that the common law of England had been adopted; moreover, as, by the common law, the owner of cattle must fence them in, and between lands which are exclusively devoted to raising crops no necessity to fence occurs, it appears to result that the law, as it now stands, as to "partition or "division" fences, is to a very great extent the creature of, and has its existence by, the statutes of the several States. At all events, whether these statutes are to be regarded as declaratory of, or in derogation to, the common law, the provisions are so precise as to render necessary a careful consideration of the State laws to determine the relative duties and rights of those who hold adjoining lands, as to building and maintaining division fences.

§ 219. General characteristics of fence laws.-The general provisions of the statute laws of the several States are substantially the same, and are to the effect that where two or more persons have farming lands adjoining, each of them is required to build and keep in repair a just and equal proportion of the division fence between them, in all cases where their lands are in such a condition of improvement, reclamation, or devotion to agricultural pursuits, as necessarily demands that they shall be fenced.

"The legis

1 Phillipps v. Oystee, 32 Iowa, 257; Jones v. Perry, 50 N. H. 134. lature of a State has the constitutional power to regulate, by statute, the relative rights and responsibilities of inclosed land, and the owners of stock going at large or kept in adjoining inclosures." (Wills v. Walters, 5 Bush, [Ky.] 351.)

Hollister v. Hollister, 35 Conn. 241. But, although legislatures, by enacting certain fence laws and statutes regulating the running at large of stock, have impliedly declared that no action shall lie for injuries done to real estate and crops, by running cattle, unless such fence be made; it should not be considered that the law will permit one person to graze his stock on another's land, whether

Notwithstanding the provisions of the common-law rule and its recognition, it is a fact that has been recognized tacitly, if not openly, that no cultivation of the soil can be safely pursued as employment except in inclosed fields, and the building and maintenance of division fences has hence become an important subject of legislation, and the construction and application of the laws in relation thereto have been matters interesting in discussion and important as to decisions by the Courts of the United States.

§ 220. State laws as to what shall be lawful fences.— Lawful fences are prescribed in the statutes of the several States, as a general thing, and where the law provides that a fence shall be built or maintained, it is to be presumed that a lawful fence is intended, where the express agreement of the parties is not to the contrary; the law makes an agreement for them, but, as between themselves, they may, if they choose, vary it. Some of the States do not, in terms, prescribe what shall be deemed a lawful fence, but in most of them the legislative enactments in this behalf are so voluminous as to preclude here any description of them other than by reference to the laws themselves, with mention of their chief characteristics.

§ 221. Fence laws in certain States.-In Alabama, all fences must be five feet high, and strong enough to turn stock.1 Arkansas-The sufficiency of any fence may be determined by viewers summoned to examine it.2

California-A fence of stone four and a half feet high, and of other material five feet high, etc.3

Connecticut-A rail fence four and a half, or a stone wall four feet high.4

Delaware-Good fence, four and a half feet high, of wood, stone, or well-set thorn hedge and ditch.5

it is fenced or not. (Union P. R. R. Co. v. Rollins, 5 Kan. 167; Logan v. Gedney, 38 Cal. 579; Caulkins v. Mathews, 5 Kan. 191; Maltby v. Dihel, 5 Kan. 430.)

1 Rev. Code Alabama, 1867, Tit. 13, Chap. 8.

2 Rev. Stats. Arkansas, Chap. 76; Digest of 1858, Chap. 87.

3 Genl. Laws of California, 1864, Secs. 3029, 3062.

4 Rev. Stats. Connecticut, 1866, Chap. 21, Sec. 1.

Rev. Code Delaware, Chap. 57.

Georgia-Worm fences or ditches must be five feet high or deep, as the case may be, and other fences same height.1

Illinois-Walls, ditches, or fences five feet high, and sufficient to inclose and restrain sheep.2

Indiana-Any structure in the nature of a fence which is such as good husbandmen generally keep, and shall, on the testimony of skillful men, appear to be sufficient.3

Iowa-A three-rail or board fence, with posts not more than ten feet apart where rails, and eight feet where boards, are used, or any other fence which in the opinion of the fence-viewers may be deemed equivalent thereto.4

Kansas-Post and boards or rails, hedge, ditch, palisades, post and wire, at least four and a half feet high and sufficiently close, or stone walls at least four feet high.5

Kentucky-Every strong, sound fence five feet high, and close enough to restrain stock, or a stone wall four and a half feet high.

§ 222. State laws as to lawful fences.-Maine and Massachusetts have statutes substantially alike as to what shall be lawful fences, viz., all fences four feet high, of rails, boards, timber, or stone walls, in good repair, and sufficiently close to turn stock, or such other fences as the fence-viewers deem equivalent.7

In Michigan and Minnesota, the statute is the same as in Maine, except that the standard of height is four and a half feet.8

In Mississippi, all fences, five feet high, substantially and closely built of plank, pickets, or other good material; or hedges sufficiently strong and close to exclude domestic animals of ordinary habits and disposition.9

1 Code of Georgia, 1873, Chap. 9, Secs. 1443-51.

21 Gross. Chap. 17, Secs. 11-18; Laws 1865, Chap. 173.

81 Rev. Stats. Indiana, 1862, Chap. 62.

4 Iowa Code, 1873, Tit. 11, Chap. 4.

5 Genl. Stats. Kansas, 1868, Chap. 49, Art. 1.

6 Genl. Stats. Kentucky. 1873, Chap. 55, Art. 1.

Rev. Stats. of Maine, Tit. 2, Chap. 22, Secs. 1-4; Genl. Stats. Mass. Chap. 25, Secs. 1-2.

8 Compiled Laws Mich. 1871, Chap. 14; Rev. Stats. Minn. 1866, Chap. 18.

9 Rev. Stats. Mis. 1870, Chap. 33, Secs. 1905 et seq.

Missouri-Fence, sufficiently close to restrain domestic animals, five feet high, of posts and rails, or pallisades; hedges, or turf or worm fence, with corners locked by strong rails, posts, or stakes.1

Nebraska-A rail fence, six rails high, post and rails, or boards; three rails or boards, an inch thick, and at least five inches wide, or post and four wires-number nine wire-and all at least five and a half feet high; or the fence called " Warner's Patent," four and a half feet high.2

New Hampshire has a law similar to the statute of Maine and Massachusetts.3

In New Jersey, all fences are lawful, which, being of post and rails, timber, boards, brick, or stone walls, are four feet two inches high; and all other fences four feet and six inches in height, and so close as to prevent horses and neat cattle from going through or under the same; and partition fences between improved lands must be close and low enough to turn sheep.1

In Rhode Island, a hedge, with a ditch three feet deep; a hedge, without a ditch, four feet high; a stone wall, four feet high, and all other kinds of fences four and a half feet high, in good repair, and sufficiently close.5

South Carolina-All fences strongly and closely made of rails, boards, or posts and rails, or an embankment of earth capped with posts and rails, or line hedges five feet high."

Tennessee-A sufficient fence, five feet high, and so close from the earth as to prevent the passing through or under of hogs." Texas-Substantially the same as Tennessee.8

Vermont has a statute similar to that of Maine, except that the standard of height is four and a half feet.9

Virginia-Every fence five feet high, well built, and suffi

11 Wagner Stats. Chap. 71, Sec. 1 et seq.

2 Genl. Stats. Nebraska, 1873, Chap. 2, Secs. 18–38.

8 Genl. Stats. N. H. Chap. 128, Sec. 5 et seq.

4 Nixon's Dig. 4th Ed. 331.

5 Genl. Stats. R. I. 1872, Chap. 94.

6 Stats. at Large, S. C. Vol. 6, No. 2340.

Code of Tenn. Amended, 1870-1, Chap. 36, Sec. 1 et seq.; Code of 1858, Chap. 3.

8 Paschal's Dig. 639.

* Genl. Stats. Vt. Chap. 102.

ciently close and near the ground to restrain horses, cattle, sheep, hogs, and goats.1

§ 223. Lawful fences in certain States.-West Virginia -Worm fence four-and-a-half, post and rails or boards, picket fence or hedge four, and stone wall three-and-a-half feet high.2 In Wisconsin, the law is similar to that of Maine, except that the standard as to height is four-and-a-half feet.3

In Maryland, although there is no general law as to what shall constitute a lawful fence, there are local laws for the several counties, by the terms of which the fences of various kinds must be at least four feet high, and close enough to prevent hogs passing through or under them in some of the counties.4

In New York, the statute leaves the whole matter of the character of fences to be determined by the electors of each town at "town meetings." 5

In North Carolina, similar provisions leave the matter to the determination of the voters of the several localities, in elections duly held, except that there is a general statute, by the terms of which each planter is compelled to protect his cultivated fields by a fence at least five feet high.

In Pennsylvania, also, by statute, the owner of corn-fields, etc., must keep his land inclosed by good fences, at least five feet high, of sufficient rails or logs, and close at the bottom; and incorporated boroughs in the Commonwealth of Pennsylvania have power to make needful regulations as to fences."

§ 224. Rivers may be lawful fences.-Rivers, ponds, and creeks, where of such width and depth as to constitute as much of an obstruction to the passage of domestic animals as the prescribed fences, are generally, by the several statutes, designated as lawful fences, and lands which are inclosed by lawful

1 Virginia Code, 1860, Chap. 99, Sec. 1; Laws 1872, Chap. 239.

2 West Va. Code, 1868, Chap. 60.

8 Taylor's Stats. Chap. 17.

4 Laws of Maryland, 1870, Chap. 432.

5 Rev. Stats. N. Y. Part 1, Chap. 11, Tit. 2, Art. 1, Sec. 1.

6 Rev. Code N. C. Chap. 48, Laws 1871, Chap. 187, Laws 1873, Chap. 98, and Laws 1873, Chap. 193.

7 Brightley's Purdon Dig. 693-5; Ibid, 168.