fences and water-courses of the character detailed should be deemed lands protected by a lawful fence; but to be such a lawful fence it appears that it must be so far impassable as in that respect to be equivalent to the prescribed fence throughout the year, as otherwise it is not such a water-fence as is designated by the law.1

§ 225. Fences which are as efficient as lawful fences to turn stock and protect inclosures are generally made equivalent thereto, as a compliance with the fence laws of the various States.

The statutory provisions are not arbitrary, as a general rule, but may more justly be regarded as giving a standard to which fences must conform as to efficiency in order to merit their being regarded as lawful fences.

Thus, in many of the States, after lawful fences are specifically described, qualifying sections occur, which provide, in effect, that any fence which, by reliable evidence, shall be shown to be as strong, substantial, and as well calculated to protect inclosures as either of those described, shall also be deemed a lawful fence, and in other of the States the matter of what shall be deemed lawful fences is left to the judgment of the fence-viewers to decide whether the fence is of a character equal in efficiency to the prescribed lawful fences.2

It has, in some instances, been provided by statute that where

1 Lamb v. Hicks, 11 Met. 496, in which it was held that a partition fence on land that is covered part of the year with the waters of an artificial mill-pond, but is occupied and used as a pasture or mowing land during another part of the year, is not a water-fence within the meaning of the statute.

2 Philips v. Oystee, 32 Iowa, 257. "Under the Iowa statute, which requires fences to be of a specific height, a fence of less than the specified height, if it affords equal strength and security, is a lawful fence. The design of the law was to provide security to the inclosed fields of land-owners."

So, in Vermont, any person may impound animals found doing damage in his inclosure, and, under this statute, the point was made that the inclosure must be by lawful fences as prescribed by the statute, but it was held that it is not essential that the inclosures should be by fences which strictly complied with those described as lawful fences. (Keith v. Bradford, 39 Vt. 34; Davis v. Campbell, 23 Vt. 236.)

Code of West Virginia, 1868, Chap. 60; Ketcham v. Stolp, 15 Ill. 341, which was a case where defendant had been, by suit, compelled to build half a division fence, and did so, but his fence did not conform to the requirements of the statute as to lawful fences, but, being found to be a sufficient fence for the purpose, it was held a compliance with the decree.

the sufficiency of a fence shall come in question in any suit, it shall be presumed to have been sufficient until the contrary be established, and as a matter of practice, the rule appears to be that the insufficiency of a fence when an excuse for a trespass is a special defense, and the burden of establishing it falls on the defendant.2

§ 226. Obligation to fence by coterminous proprietors. -Throughout the United States, the statute laws are to the effect that where coterminous proprietors have their lands under cultivation, each shall build and maintain in good repair his half of so much of the fence as constitutes his boundary.

It may be true, as a fundamental principle of the common law, that no man is bound to fence against the cattle of others, and that the owner of animals should keep them restrained from trespassing upon his neighbor; but, practically, the rule in America is, as a general thing, without vitality, and that it is so is recognized by these statutes. By them, the occupants of lands which are inclosed with fences are required to build and maintain partition fences between their own and adjoining inclosures, in equal shares, while both parties continue to use them for such purposes of agriculture as demand that they should be protected from encroachment by cattle.3

11 R. S. Part 1, Chap. 11, Tit. 4, Art. 4.

2 Colden v. Eldred, 15 Johns. 220.

8 Rev. Code Ala. 1867; A. J. Walker, Secs. 1282-92; Chap. 76, Digest of 1858; Chap. 87, Laws 1873; Chap. 96, Rev. Stats. Ark.; Genl. Stats. Conn. Rev. 1866, 443 et seq.; Hittell's Digest Cal. Vol. 1, Sec. 3036. This is not affected by code. (See Sec. 19, Subdivision 23, Political Code, 1872.) Stats. of Ill. Rev. Code, 1852, p. 158; 1 Gross Stats. Ill. Chap. 51; 1 Rev. Stats. Ind. 1862, Chap. 62; Code of Iowa, 1873, Tit. 11, Chap. 4; Genl. Stats. Kans. Chap. 40, Art. 3; Genl. Stats. Kentucky, Chap. 55; Rev. Code La. 1870; Civil Code, Chap. 3, Art. 1; Rev. Stats. Me. 1871, Tit. 1, Chap. 3; Genl. Stats. Mass. Chap. 25; 1 Comp. Laws Mich. 1871, Chap. 4; Rev. Stats. Minn. 1866, Chap. 18; Rev. Stats. Miss. 1870, Chap. 33; 1 Wagner's Stats. Mo. Chap. 71; Genl. Stats. Nebraska, 1873, Chap. 2; 2 Comp. Laws Nev. 1873, p. 459; Genl. Stats. N. H. 1867, Chap. 128; Nixon's Dig. N. J. Laws, (4th Ed.) 331; 1 Rev. Stats. N. Y. Part 1, Chap. 11; 1 Rev. Stats. Ohio, Chap. 45; Brightly's Purd. Dig. Penn. 168, 693-5; Genl. Stats. R. I. 1872, Chap. 94; Code of Tenn. Sec. 4652, Acts 1870-71, Chap. 36, Sec. 3; Genl. Stats. Vt. Chaps. 28 and 102; Code of Va. 1860, Chap. 99; Code of W. Va. 1868, Chap. 60; 1 Taylor's Stats. Wis. Chap. 17.

In building line fence, each party has the right to go upon the lands of the other, and may deposit thereon, temporarily and for the purposes of the work, stone or other material for the fence. The party so entering upon another's

§ 227. The owner of uninclosed land need not join in fencing. The obligation to fence arises whenever by joining fences the inclosure is completed; and until such time as the owner of land does surround it by fences, in such manner as to exclude therefrom cattle and other live-stock, he cannot be compelled to pay for, build, or maintain any part of the fence which separates his land from that of his neighbor. Hence, it results that when a fence, being built by one of such coterminous proprietors, is joined to by the other proprietor, and his inclosure thereby made complete, he should pay for half of the fence joined to at its then present value, and thereafter maintain his half in good repair.

Where one party ceases to improve his land, or throws it open to the commons, he must not take away any part of his partition fence adjoining the next improved inclosure if the owner or occupant of such inclosure elects to pay its value within a reasonable time, which is generally fixed by statute.1 Where adjacent lands have been occupied in common, though owned in severalty, and either party wishes to segregate his tract and occupy it alone, he may compel the other party to build or pay for one-half of the fence necessary to divide the two tracts. The process of so compelling a division of the expense is matter of legislative enactment, the details of which appear by reference to the statutes of the several States.

§ 228. Where a water-course is the boundary the division fence may be on either side. If a pond, stream, or gulch is the boundary of tracts of land which belong to different per

land, for the indicated purpose, is not a trespasser, so long as he does no unnecessary damage to the premises. (Carpenter v. Halsey, 57 N. Y. 658.)

1 The statutes of the several States, before referred to herein, have provisions more or less explicit to this effect.

It has been held, by the Supreme Court of Illinois, that a partition fence, whether existing by agreement, acquiescence, or statutory provision, cannot be removed until the parties interested in its remaining are properly notified of the intended removal. (McCormick v. Tate, 20 Ill. 334.)

Gray. Waterman, 40 Ill. 522, and in another case, where there was an outer and an inner fence to a field, a party not having an exclusive right to the field must not remove the inner fence, although it belongs to him, without assuming the risk of injury to the crop; and it is no defense to show that the complainant was bound to keep the outer fence in repair, or that he might have repaired it at small expense. (Buckmaster v. Cool, 12 Ill. 74; McCormick v. Tate, Ante.)

any case

sons, and such natural division is not so far impassable as to constitute a sufficient fence, but it is impracticable to build or maintain one on the line along the center of it, in where the circumstances are such that one party could compel the other to erect and keep in repair a division fence, this right is not lost because the fence cannot be put upon the line; but if the occupant of the land on one side refuses or neglects to join with the occupant of the land on the other in making a partition fence on one side or the other, then he who desires the fence to be built may erect it on such side of the stream as may be most expedient, and compel the other party to pay for and maintain one-half of such fence in good repair; and the fence so built is thereafter a partition fence, and is so regarded in all respects, notwithstanding it is wholly upon the land of one of the parties.1

1 Bissell v. Southworth, 1 Root, 269. It was at an early date (1791) decided in Connecticut that where, a river being the line, no fence could be made, and that, therefore, the case ought to be ruled by principles of reason and justice, either owner of adjoining premises may erect a partition fence; and the use of so much of his neighbor's land as is requisite for that purpose is held to be not adverse, but by permission of the owner. (Dysant v. Leeds, 2 Barr, 488.)

These instances, where a fence upon land is not part of the realty to which they are attached, are exceptional from the general rule, and as such liable to strict construction; it is, therefore, prudent to comply strictly with the statutory requirements before putting a fence on another man's land. sumption is that a fence is part of the realty, and this presumption can be overcome only by showing compliance with the statute. (Brown v. Bridges, 31 Iowa, 138; Voorhies v. McGuiness, 48 N. Y. 278.)

The pre

So far has this reasoning been carried, that it was held that loose rails, laid up in a fence inclosing a field, are a part of the freehold, although the fence is not staked with stakes sunk into the ground. (Smith v. Carroll, 4 Greene, 146, and to the same point, Goodrich v. Jones, 2 Hill, 142; Walker v. Sherman, 20 Wend. 639; Bishop v. Bishop, 11 N. Y. 123.)

It has also been held that a fence built upon public land, even by mistake, passes with the freehold to the purchaser from the Government; and if such fence is detached from the realty by a wrong-doer the purchaser's right to it is not divested; and in such a case the party who built the fence becomes a wrong-doer by taking it away. (Burleson v. Teeple, 2 Greene, 542.)

In Wisconsin, it has been held that rails placed along the boundary line of lands for the purpose of being laid up in a fence, though not actually applied to that use, will pass by a conveyance of the lands, there having been a manifest appropriation of them to the use of the land. (Conklin v. Parsons, 1 Chandler, 240.)

Yates v. Van De Bogart, N. Y. Court of Appeals, Feb. 6th, 1875. "A fence was built by plaintiff's grantees on the west side of the creek, in a place where it could be conveniently put without danger of being washed away, not as a line fence, but to prevent cattle from coming across the creek upon the land.

§ 229. Fence-viewers and their duties.-Fence-viewers, whose official duties are to apportion and allot to each coterminous proprietor his portion of the division fence to be built or maintained, are by statute provided for in many of the States.1

It is their province to determine such controversies as may arise as to the necessity, under the law, of a fence being built; and if a dispute arises between the owners of adjoining lands, concerning the proportion or particular part of any fence to be built or maintained by either of them, such dispute must be settled by the fence-viewers.

In such case, upon notice, the fence-viewers go upon the land, hear the testimony, and examine the premises; their decision is rendered in writing, must contain a description of the fence, and of the proportion to be built or maintained by each, and be filed with the town clerk, or recorded as provided in the several States.

With similar provisions as to notice, any dispute as to the value of the portion of the fence which has been erected by one of two coterminous proprietors of land, which the other should, by law, pay for, may be referred to the decision of the fenceviewers, and all differences of a like nature, in the matter of the

The owner of the land occupied by defendant, on the opposite side of the creek, had built and kept up at times a fence running across the creek and conecting with the first fence.

"Held, that this did not tend to show an adverse possession; neither did the facts that defendant's horses and cattle sometimes crossed the creek upon the strip between the fence and the creek."

1 Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Nebraska, Maine, Massachusetts, New York, New Hampshire, Rhode Island, Vermont, Wisconsin, Pennsylvania.

In Connecticut, the duty of fence-viewers is also, to some extent, imposed upon the selectmen of the towns. In New Jersey, the town committee acts as a board of fence-viewers; in Ohio, the township trustees; and in Minnesota, the town supervisors perform their duties; in Alabama fence-viewers are appointed by the County Court.

The Supreme Court of Alabama has held that the partition fence is the joint property of both parties; that each is bound to keep the whole line in repair, and that neither party can maintain trespass against the other for an injury consequent on an insufficient fence, because the duty of maintaining it is upon each.

Therefore, if the fence need repairs, either party may do the work and enforce contribution by action before the appropriate tribunal, although viewers have not been appointed by the County Court. (Walker v. Watrous, 8 Ala. 493.)

FARM-19.