The Abilene reflector. [volume] (Abilene, Kan.) 1883-1888, 1884-04-17
About Fences.

Hc lC0dl JULY dllOu VI Tile PdtOco
occupying adjoining lands, to maintain
partition fences where no prescription
exists, and no agreement has been
made, rests on the statute. The law
relative 20 division fences is:
/. The tenant of close at common
law was not obliged to fence against an
adjoining close unless by prescription
or agreement.
2. But if obliged to fence under one
or the other. he was only bound to
fence against such cattle as were right
fully in the adjoining close.
3. If not required to fence against
ad dining land, he was nevertheless
bound to keep his cattle on his own
land.
1t may prove beneficial to refer briefly
to what will constitute "a fence" since
it frequently becomes of practical im-
portance to know. OF course what the
farmer chooses to erect on his own land,
can in no way be regulated by law, I'M
less, perhaps it be nuisance, injuring
other people as well as himself He
may build what manner of fence he
chooses, or none at all. Iron, stone,
brush. stump, rail, Wire, board or a
combination of any or of all of these
materials, commonly employed in build
ing fences, may be used without vio-
lating law. So it only becomes neces-
sary to consider the law in its applica-
cation to fences dividing lands owned
by different parties.
A ditch will sometimes be considered
a fence, as far as boundary lines are
concerned. 1t cannot of course be re-
garded fence that will protect the
owners land from trespassers, except,
perhaps under certain conditions when
it is very deep or very wide. We shall,
however, regard it as common fence,
bounding adjoining estates. If an
owner OF land construct ditch through
it and afterward sell a portion of the
land bounding the part sold on the
ditch, the grantee will take to the center
of the ditch. The ditch will here be
regarded a fence in the absence of any
agreement between the parties, and
must be governed by the same rules
governing the repairing and erection of
fences. Like fences, it must be kept in
condition by either of the parties, pre-
Striving lIS Nluln, however,.
If one construct ditch between two
estates, he must exercise care to keep
on his own land, for he cannot lawfully
cut into his neighbours soil without his
permission, and he is also obliged to
throw the soil which he digs out upon
his own land. The same rule applies
to bitches as to fences. If not required
to be done it must be erected on his own
land.
A hedge may also constitute a good
fence; in general, it belongs to the oc-
cupier who has been accustomed to
trim and repair it, and proof of such
act will be prinaa facie evidence of prop
erty in the hedge. If the adjoining
owners be tenants in commoh of the
hedge, each has a right to clip and
keep it in repair, but neither can grub
it up. In the Western States, because
of the scarcity of wood, fences are
frequently constructed by planting
young shoots, which in time become
sufficient to turn stock, and oftentimes
become so dense as TO prevent fowls
from entering the enclosed tract. These
fences are specially sanctioned by law,
but in the East it might be questioned
whether they would be or not. In New
York it has been decided that inasmuch
as Zigzag or rail fences have been used
time out of mind, they are legal fences,
and also that they may occupy as much
land as is necessary each side of the
strictly mathematical boundary line.
Such fence in contemplation of law is
fence upon the boundary line between
the adjoining farms, and one half may
be properly placed upon the land of
each owner.
Usually the statute declares what
shall be considered a sufficient fence,
by specifying the material of which it
shall be constructed and o; what height
it shall be. 1t is impossible, in brief
space. to give anything more than an
instance. Thus, in Michigan, it must
be four and a half feet high, consisting
of rails, timber, boards or stone walls,
or any combination thereof, or what
ever shall be considered sufficient in
the option of the fence-viewers. Any
structure, in the words of the Indiana
statute, used for the purpose of in
closure, and as such as shall, on the
testimony of skillful men, appear to be
sufficient, shall be deemed lawful
fence. In some States it need only
meet the approval of the fence-viewerS,
who are appointed, and whose duty it
Is to examine and decide whether
fences meet with the requirements of
the law.
The object of fencing is TO provide
against damage caused by domestic an
finals properly restrainable by COM
mon fence. The owner of land en-
closed by a fence is not obliged to pro-
vide against the entrance of animals SO
small that they may pass through or
under an ordinary fence, nor against
such wild animals as would break
through an ordinary fence. If an ami
NAL break through a sufficient fence,
and tFespasses on another's land, the
owner is liable for the DAMAGE done. 1t
was decided in Missouri that when a
buffalo bull breaks through fence, the
owner of the land might kill him to
protect his property from destruction,
the fence was not built in
strict accordance with the requirements
of the statute. But this was the case of
a wild animal. 1t is not ordinarily law
full to kill animals which are trespass-
ing on ones land. At most, the owner
of the land can only drive them off or
impound them. Only by statute can
the owner of cats and dogs be made
liable for tresspasses committed by
them.
Where there is neglect to build a
fence where one is required, the party
so neglecting will be liable tor any in
Jury occurring in CONSEQUENCE of his |