Fig. 274.—Wire Fence Passage.
[Figure 274] shows a passageway in a wire fence, which requires no climbing, and while it presents an effectual barrier to large animals, is readily passed by any but very corpulent persons. It originated and was patented in England, but we believe there is no restriction on its construction and use in this country.
CHAPTER XIII.
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 Hence the English common law in regard to fencing has been superseded by statute in many of the States.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.