FENCE LAW.
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Hence the English common law in regard to fencing has been superseded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.”
DIVISION FENCES.
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.
HIGHWAY FENCES.
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 IS A LEGAL FENCE?
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.
RAILROAD FENCES.
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.