ANOMALIES OF FENCE LAW. 21 



IV. Anomalies of Fence Law. 



Br Samuel Wasson, East Surry. 



Fence laws, like the fences to which they relate, are full of 

 defects. Of fence laws, we have too much, and of fences, too 

 many. Of the many anomalies now existing in our fence law, the 

 pure logic of justice is quite incapable of explaining. 



The present law, in its best estate, is a " double and twist " of 

 usages and enactments, ancient customs and modern decisions ; 

 a compound of common and statute law. Its first ofScial act was 

 the recognition of all farm property as being either locomotive or 

 slalionary, or that which could, and that which could not, pass its 

 "metes and bounds;" and for the benefit and protection of all 

 concerned, the law enacted ih At fences, as a "line of obstacle," 

 should be maintained between thetn. 



The next link in the legal chain was how, when, and by whom 

 such barriers should be erected ? Equity and justice say, that 

 class of property which could not astray needed no restraint, for it 

 could neither make an encroachment nor do an injury. So said 

 Common Law ; and to make its saying heeded, it attached a 

 " peril" to locomotive property when it escaped beyond its bounds. 

 As if to "moor" this declaration of common law "with two 

 anchors," written law declares (R. S. c. 23, §. 4.) that "any 

 person injured in his land by cattle, etc., may recover his dam- 

 age." Thus far every declaration of law and justice is, that fences 

 are for the protection of crops and the restraining of cattle, and 

 that the fence burden is to be borne by the latter. 



The first irregularity of Statute Law, that "Americanism " for 

 fraud, comes to the light in these words: " by proceeding, as here- 

 inafter directed," (R. S. c. 23, § 4,) "one injured in his lands may 

 recover his damage by proceeding as hereinafter directed.^' It is 

 this " proceeding as hereinafter directed," which has become a 

 "Felix waiting for a bribe," throughout the whole fence law. 

 The chief anomalies for which it makes way, are found in the laws 

 which relate to division fences, roadside fences, and the perils. 

 Bear in mind that the underneath inferential of law is, that fences 

 are not for the restraining of crops but of cattle, and that fences, 



