The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1879-08-20

tally re-enacted with the proviso that
fence of full height and strength as re
quired by this act shall be lawful fence
against horses, mules, asses and neat cattle
but unless otherwise constructed agree
able to the provisions OF this act las TO
aperatures etc., shall not be a lawful
fence as regards sheep. goats and hogs;
Sec. 2 provided for partition fences and
how the expense should be borne and de-
fined the duty of fence viewers, ETC., al
most as the act of 1918. Further legisla-
ton was had February Il, 1888. See an
act concerning enclosures and tresspassing
animals, Laws of Indiana, chapter 81, page
1852; Sec l provided what constituted a
lawful fence against all kinds of cattle;
sec. 2 provided for partition fences by
whom to be made and how maintained;
duties of fence viewers; notice of in
sufficiency of fence; order to repair div
ision fences, how enforced by justices; ex-
penses, etc, to be levied on delinquent's
goods ending with a proviso as to other
modes of enclosing By an act regulating
the mode of doing county business, ETC.,
approved Feb. II, 1888, county commits
sioners were charged by law with the duty
of appointing two fence viewers (Sec. 20
page 154). The subject again demanded
the attention of the legislature in 1913, see
chap. %, page 374, statutes of 1913, of en-
closures, tresspassing animals and parti-
ton fences. By Sec of this act, all fences
consisting of rails, boards, timber, stone
walls, or other materials, or bitches or
hedges, which are such as good husband
men generally keep, and which shall be
held sufficient in the just judgment of
the fence viewers within whose jurisdic-
ton they lie, shall be deemed lawful fences
Sec. provided that the lawfulness of
fences was to be determined according to
the kind of animals tresspassing. Sec. 80
to 43 provided for partition fences and
how the expenses should be borne
and the duty of fence viewers. By
100, fence viewers were to be elected. 1t
will be observed that under the acts re.
ferred to, if the parties should be unable
to agree, as to how the cost of the fence
should be divided, either party might
apply to the fence viewers under the stat
ute. And if, after the decision of the
fence viewers, either party refused or neg
lected to pay his share the ether could
recover the amount by suit at law. At
ter the adoption of the constitution OF
1852 the duties of the Office of fence viewer
were thrust upon the township trustee
who is ex-oficio fence viewer and by an
"act concerning Enclosures, Jrespassing
animals, and partition fences" approved
June 4, 1852. it was provided by section L.
that any structure, hedge or ditdh in the
nature of fence, used for the purpose of
Enclosure, which is such as good husband
men generally keep, and as shall ON the
testimony of skillful men, appear to be
sufficient, shall be deemed a lawful fence.
By section Is OF said act, lawful parti-
ton fence shall in all cases be such as to
inclose snd restrain sheep, unless by mu-
tual consent of the parties interested they
10 hrrrlA n Or,lx TO aC&r
inclose horses, mules or cattle; except
where otherwise specially agreed, parti-
| ton fences dividing lands occupied on
| both sides, shall be maintained through
out the year, equally by both parties
Sections 16, II, Is, 10, 20 and 81 make am
pie provisions for obtaining from either
party failing to bear his share of the ex-
pense of maintaining the partition fence,
the amount necessary to put the fence in
repair as assessed by two disinterested
| freeholders with 10 per cent. damages
thereon. Section % forbids any person
inclosing lands that have been lying open
to join his fence to another except by con-
sent Section % requires six months no.
| tice OF an intention to remove part of a
partition fence by an adjoining owner
who has no further use for it. Notice
must be given to all persons interested in
the removing of said fence, see case of
Haines v. Kent and others, IL Ind, page
l26. By act of March II, 1877, section
2 of the act Of 1852 was amended to
read as follows: If any domestic ami
NAL break into an Enclosure or wander
upon the lands of another, the person in
| jured thereby shall recover the amount
of damage done: Provided, that in town
ships where, by order of the board of
county commissioners, said domestic ami
mails are permitted to run at large, it shall
appear that the fence through which said
animals broke, was lawful; but where
such animal is not permitted to Craze
upon the uninclosed commons, it shall not
be necessary to allege or prove the exist
ence of a lawful fence in order to recover
for the damage done. By an examination
of all the foregoing acts of the legislature
1t will be seen that SO far as regards out
side fences the farmer has always been
obliged by the laws of Indiana to fence
his neighbors' cattle, and such is the law
to-day except in townships where animals
are not permitted to run at large and
Craze upon the uninclosed commons. Prior
to the passage of the act of 1877 March II,
| 1870, the supreme court of Indiana ruled
as follows upon the subject of outside
fences: In the case of Myers VS.. Dodd, 8
Ind. page 290, the court says, after quoting
the act of Jan. 4, 1852, and also the act
OF 1852 authorizing county commissioners
to direct what kind OF cattle may run at
large: "A question has been raised whether
the legislature has any power to grant the
privilege of pasturing cattle upon uninclos-
ed lands. without the consent of the owner;
and this inquiry mightbeextendedt to COM
mons and highways, as well as to other
lands, the fee of which generally remains
in the owner of the adjoining close, sub
ject to the public easement. We do moi
think it necessary to decide this question
at the present, because, admitting the
non-existence of the power in question,
there certain purposes for which cattle
may go at large, as when driven in teams
or droves, and in view of this fact, it is
competent for the legislature to declare
that an action shall not be maintained fol-
a trespass committed by them, in favor Of
the owner of lands not securely fenced