FENCE, FENCING (in law). At common law, a landowner is under no duty to maintain a fence, either to mark his boundary line. or to protect his premises from trespass by man or beast. On the other hand, every one is under a common-law duty to keep his cattle from tres passing upon the land of others. Accordingly the introduction of fences, in agricultural regions at least, appears to have been for the purpose of keeping cattle in, rather than of shutting them out. They were resorted to as a convenience rather than a protection.
While the common law does not confer upon a landowner the right to force his neighbor to maintain a fence, it does permit him to acquire such a right by agreement or prescription. When the right is so obtained it is called an easement, and the land, whose owner is thus hound to main tain a fence, is said to he subject to a servitude. A contract under seal by a property-owner with his neighbor to build and maintain a fence upon the land of the former for the protection of the neighbor's premises, not only creates a personal liability enforceable against the promissor, hut it may. if so intended. create an incumbranee upon his land in the nature of an easement. A pre scriptive liability of this character is not com mon, nor is it easily established. One who claims it must be prepared to show not only that the person charged has uniformly repaired the fence in question. hut also that he has so repaired it at the request of the ela infant. and in recognition of the latter's right.
In sonic of our States the common-law rule that landowners are not bound to fence against trespassing cattle has been rejected by the courts, as unsuited to the conditions and usages of a new country: and the rule has been adopted that the owners of cultivated lands can recover for damages done thereto by trespassing cattle only when they are inclosed by good and suffi cient fences. This rule has been recognized by the United States Supreme Court as applicable to the public lands of the Federal Government. In all of the States, and in England, the common law doctrine has been modified by statute. It is here to describe this legislation in de tail, but its characteristic features are these: First, it imposes upon adjoining landowners the duty of contributing equally toward the erec tion and maintenance of division fences between the improved or cultivated portions of their lands. Second, these fences are to be so built
that the line between the two estates shall pass through the middle. At common law, the owner, who was bound to maintain a division fence, was obliged to construct it wholly upon his premises. Third, what constitutes a lawful fence is gen erally fixed by the terms of the statute, or is left for definition to local authorities. In England barbed-wire fences along highways are• prohibit ed; but in this country their use is per mitted. Fourth, division fences are intended, under modern legislation, as a protection against cattle rightfully on adjoining land, and only against those. In some cases, however, the stat utory duty to fence is an absolute one. Such, as a rule, is the duty of railroad companies. Until they erect, and unless they maintain the statutory fences, they are liable to all damages inflicted by their engines and cars upon cattle straying upon their tracks. They may even he liable to passengers and employees who are in jured in collisions with trespassing cattle. The private property-owner, however, owes a duty of fencing only to his immediate neighbor. if his fence conforms to statutory requirements, he is not liable to his adjoining neighbor for the tres passes of his cattle upon the latter's land, unless they are unruly beasts. On the other hand, lie cannot recover for the trespasses of his neigh bor's cattle if his own fences are defective. A fence is a part of the land. This is time even of a rail fence, although no stakes are set into the ground. The same doctrine has been applied to fencing materials which are temporarily de tached from the soil when there was no intention of diverting them from their original use. They arc real estate, not chattels. See Hunt, Law of Boundaries and Fences (London, 1896) ; 'Chomp scm, Law of the Farm (San Francisco, 1896) ; id., Law of Boundaries and Fences (Albany, 187-1) ; Thornton, Railroad Fences, and Private Crossings ( Indiana pol is, 1892 ) .