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

outside fences. We have quoted the above
decisions 60 show that the common law
rule does not prevail in Indiana, being
superseded by the statute referred to, but
that the statute refers to outside fences
solely. But if by an order of the board OF
county commissioners properly made, cat
tie of all kinds are prohibited from run.
ming at large in any township in the
county, then in that township the common
law heretofore alluded to prevails, which
is that a man must keep his beasts upon his
own land at his peril. Itwould follow then,
that the farmer need not fence his neigh
boris cattle out. but if they stray and enter
upon his land and do him damage, the
owner would be liable, and the question
of lawful and unlawful fence could not be
raised. 1t would also follow, during the
existence of the order, that if turn his
cattle into the highway and they come on
your land from the road, either because
your front fence was defective or alto
gether gone, You would have remedy
against A for all the damages you would
sustain, for you would not be obliged to
have any fence on the road, except to
keep your own cattle in, and A would
thus pay the penalty for not keeping his
cattle at home. This is rule of the COM
mon law, and so stringent is it, that, under
the same circumstances said order of the
commissioners being in existence), if
other people in roaming over your grounds
hunting, fishing or berrying, leave your
bars down by which your cattle escape
into the highway and thence come into
my cornfeld, you are responsible to me
for all damages, although not actually in
fault, If YOU kept all your fences up, go
N H., page l43). On the other hand,
even with said order in force, if you are
carefully driving your cattle along the
highway and without your fault they
break away from your control and run
into any adjoining land, and you drive
them out as soon as you reasonably can,
you are not responsible for the damage
done, for you had a right to drive them
along the highway, with proper care and
attention, Ola Mass. 1861, while in the
other case they would not be lawfully in
the highway at all, although the owner
was not personally at fault. In regard to
partition fences the common law rule pre-
walls and the rights and the liabilities of
the parties must be determined thereby.
The section of the act of 1852 (15) has
been heretofore alluded to. The duty, how
ever, of maintaining partition fences, by
statute, would seem to exist only when
both parties improve their lands. 1t would
not be Just to make man whose lands are
wild, or not improved, and on which nei-
ther has cattle to stray away and injure
others, or growing crops which can be
injured by other peoples animals, to pay
the expense of building or maintaining a
fence which can be of no advantage to
him. Accordingly if one of the adjoining
owners improve his land, he has no right
to compel the other to pay any part of the
expense of fence, whose lands are wild
and uninclosed, and if he needs fence to
keep his own animals at home, or for any
other purpose, he must build it himself.
But if the one whose lands are wild and
uninclosed afterwards incloses them, and,
by so doing, the fence already erected by
his neighbor becomes a partition fence,
then he must pay his neighbor the value
of one-half OF the same as estimated by
the owner, Statute 1852, Rev. Stat. vol.
l, page 497, sec. 20; see also the case of
Bartlett VS.. Adams, 43 Ind. page 447.) Sec.
q provides the penalty of suit at law
against the party by the owner of the
ing land that has heretofore laid open
shall join his fence to that of another ex-
cept by consent If no consent be given,
each shall give one-half the width of a
lane, or a reasonable distance for the erec-
ton of second fence" If, therefore, A
owns pasture lot along side of BIS open
black jack commons, the latter is not
bound by statute to help maintain fence
between them, but if A puts cattle into his
pasture he must keep them there as best
he can, either by watching them, or, if he
thinks it cheaper, by building a fence
himself around his entire lot. So if both
are wood lots, the owners are not obliged
to erect fence, but if either allows his
cattle to range the woods, he must take
care they do not browse through his
neighbours woods, or he will be response
BILE. After the fence has been erected and
each has paid his half of the cost thereof,
the statute says it must be maintained
equally by both parties In Rhodes vs.
Mummery, As Ind page 216, it was deci-
| ded that the statute providing that parti-
| ton fences shall be maintained through
out the year, equally by both parties, is
not limited to repairs simply, but applies
as well TO the rebuilding of fence de
stroyed by fire. 1t would seem to follow,
therefore, that if any adjoining owner
does not keep up his half Of the fence. and
my cattle get through and injure his crops
he has no redress against me, since his OWE
neglect was. in part at least, the cause o.
his injury. This, however, when the par
ties had agreed between themselves to
keep up certain designated parts of the
partition fence, but in this case comes in
very important addition to this rule
and this is, if my cattle stray beyond the
Immediately adjoining land, into the farm
of third person, through a division
fence, and there injure his crops, an
liable for the damage to him, although my
own half of my fence is good and my ami
mails escaped through my immediate
neighbours defective fence; because as tt
all persons SO far as division fences are
concerned am still bound to keep my
cattle on my own land, and it is no excus,
for me that my neighbor neglected hi
half of our division fence. Nay, SO far car
this rule, in such cases be carried, tina
although such third person did not keel
up his division fence, and the cattle go
into his land through his own fault, ht
can still make me pay the damages, be
cause he is not bound by law to keep W
any division fence at all, except as be
tween his nearest neighbor, and is no
obliged to maintain a partition fence al