FENCING OUT OR FENCING IN.

The common law of England, which to a large extent became the law of the original States, bound no one to fence his land at all. Every person is bound under that law to fence his own cattle in, but not bound to fence other cattle out. Every owner of domestic animals is liable for injury committed by them on the lands of others, even though the land was wholly unfenced. But this feature of the English common law was not suited to the conditions which surrounded the early settlers in any part of this country. So long as any region is sparsely settled, the amount of unoccupied land is so much greater than the occupied, that it is cheaper to fence stock out, than to fence it in. Hence the English common law in regard to fencing has been superseded by statute in many of the States. In others it has always remained in force, or has been revived by later statutes. There is such great diversity on this point in the statutes of the several States, that, to quote from Henry A. Haigh’s excellent “Manual of Farm Law,” “every one having occasion to look up any point of law, should ascertain the statutory provisions concerning it from some official source. Do not depend upon this book or any other book for them, because they are liable to change, and do change from year to year; but go to your town clerk or justice of the peace, and examine the statutes themselves.”

The legal obligations of adjoining owners to build and maintain division fences, rests entirely upon the statutes of the respective States, save in cases where long usage has created prescriptive rights, or special agreement exists. Such fences are to be built on the boundary line, the expense to be borne equally by the parties, or each one shall make and maintain half the fence. If they cannot agree, or either refuses or neglects to do his share, the statutes provide methods by which the matter may be determined. In some of the States, two or more public officers, called fence-viewers, are elected annually in each township, whose duties, as prescribed by statute, are, when called upon, to hear and decide questions relating to fences in their respective towns. In other States, these duties are performed by overseers of highways or selectmen, ex-officio. Whenever any owner or occupant of land refuses to build or maintain half the division fence, or cannot agree with his adjoining neighbor as to which portion they shall respectively maintain, the fence-viewer may be called. Upon being so called, the fence-viewer shall upon reasonable notice, and after viewing the premises, determine and assign the respective portions of the fence to be maintained by each. The assignment when so made and recorded by the proper officer, becomes binding upon the present and all subsequent owners of the land. (2 Wis. 14). When by reason of a brook, water-course, or natural impediment, it is impracticable or unreasonably expensive to build a fence on the true line between adjacent lands, and the owners thereof disagree respecting its position, the fence viewers may, upon application of either party, determine on which side of the true line, or whether partly on one side and partly on the other, and at what distances, the fence shall be built and maintained, and what portions by either party, and if either party refuses or neglects to build and maintain his part of the fence, the other shall have the same remedy as if the fence were on the true line. When a division fence shall be suddenly destroyed or prostrated by fire, winds or floods, the person who ought to repair or rebuild the same should do so in ten days after being notified for that purpose, and in the meantime he will be liable for damages done by estrays.

There is no legal obligation in any of the States, upon any proprietor of uncultivated, unimproved and unoccupied land, to keep up division fences. When a proprietor improves his land, or encloses land already improved, the land adjoining being unimproved, he must make the whole division fence, and if the adjoining proprietor afterward improves his land, he is required to pay for one half the division fence, according to the value thereof at that time. The laws of the respective States are not uniform touching the obligations to maintain one half a division fence after the owner of the land ceases to improve it. In Rhode Island and some other States, the proprietors are required to maintain these respective proportions, whether they continue to improve their land or not. In Maine, New Hampshire, Vermont and several other States, it is provided that if one party lays his lands common, and determines not to improve them, he may, upon giving due notice, cease to support such fences. But in most of the States, he must not take away any part of the division fence belonging to him and adjoining the next enclosure, provided the other party will allow and pay for his part of such fence. If the parties cannot agree as to its value, it may be decided by two or more fence-viewers. Where adjacent land is owned in severalty and occupied in common, and either party desires to occupy his in severalty, and the parties disagree, either party may have the line divided by the fence-viewers, as in other cases.

Owners of adjoining lands may agree between themselves as to the building and maintenance of division fences, and such agreements are valid, whether they are in accordance with the law or not. In some States such an agreement, if in writing, and filed with the clerk of the township, becomes binding upon all subsequent holders of the land. If not in writing, however, such an agreement may be terminated by either of the parties at pleasure.

Under the common law, the land owner is under no obligation to fence his land along a public highway. But in Missouri, Iowa, Illinois, Oregon, and some other Western and Southern States, the common law rule has been modified by statutes depriving the land-holder of his action for trespass, unless he maintains sufficient fences around his land. In these States, the owner of land must enclose it with sufficient fences if he would cultivate it. Even where there is no such statutory provisions, it is practically necessary to maintain highway fences, as a protection against cattle which are driven along the highway. The use of barb wire for fencing along the public roads has given rise to questions for which there were no precedents. A case was decided in the United States Circuit Court, at Watertown, New York, December 17, 1885. The action was brought by a horse breeder to recover damages from his neighbor for injuries sustained by the plaintiff’s horse from a barbed wire fence, stretched along the roadside in front of the defendant’s premises. A non-suit was granted on the ground that the animal received the injuries through the contributory negligence of its owner. Among the rulings of the court was one permitting the plaintiff to be questioned, to show the fact that he had on his own farm a similar fence, but of sharper form of barb. The court further held that it might be a question whether it would not be competent testimony to show the common employment of barb wire fence in that region, and held that for the purpose of this case, a barbed wire fence, if properly constructed upon the highway, must be deemed a legal fence.

It may be said in a general way, that though there is no legal obligation resting on the land-holder to maintain fences along the public highway, he neglects to do so at his own risk and peril.

What shall be necessary to constitute a legal and sufficient fence is specifically defined by the statutes of the several States, but there is no uniform rule among all. In Maine, New Hampshire, Massachusetts and many other States, it is provided that all fences four feet high, and in good repair, consisting of rails, timber, boards, or stone wall, and all brooks, rivers, ponds, creeks, ditches, hedges, and other things deemed by the fence viewers to be equivalent thereto, shall be accounted legal and sufficient fences. In Vermont, Connecticut, Michigan, and some other States, a legal fence must be four and a half feet high. In Missouri post fences must be four and one half feet high, hedges four feet high, turf fences four feet high, with ditches on each side three feet deep in the middle and three feet wide; worm fences must be five and one-half feet high to the top of the rider, or if not ridered, five feet to the top of the top rail, and must be rocked with strong rails, poles or stakes; stone or brick fences must be four and one-half feet high. In New York the electors of each town may, by vote, decide for themselves how fences shall be made, and what shall be deemed sufficient. No part of the fence law is so definitely regulated by the statutes of the respective States as the requirements of a legal fence. In all cases where practical questions arise involving this point, it is best to consult the statutes, which will be found in the office of the township clerk.

In nearly every State, railroad companies are required by statute to construct and maintain legal and sufficient fences on both sides of their roads, except at crossings of public highways, in front of mills, depots, and other places where the public convenience requires that they shall be left open. The legal obligations of railroad companies to fence their roads rest wholly upon such statutes. In New Hampshire it is provided that if any railroad company shall neglect to maintain such fences, the owner of adjoining land may build them, and recover double the cost thereof of the company. It is generally held by the courts in all the States that, in the absence of such fences the railroad company is liable for all resulting damage to livestock, and no proof of contributory negligence on the part of the owner of livestock is allowed as a plea in defence, the statute requiring such fences being a police regulation. When the railroad company has built a sufficient fence on both sides of its road, it is not liable for injuries which may occur without negligence on its part. If the fence is overthrown by wind or storms, the company is entitled to reasonable time in which to repair it, and if cattle enter and are injured, without fault on the company’s part, it is not liable. If cattle stray upon the track at a crossing of a public road, and are killed, the owners cannot recover damages, unless the railroad company is guilty of gross negligence or intentional wrong. A law in Alabama making railroad companies absolutely liable for all stock killed on the tracks, was held to be unconstitutional.