306 BOARD OF AGRICULTURE. 



the time of the Revolution, together with such new usages and 

 customs as our courts have adopted without legislation. At com- 

 mon law every man must take care of his own cattle ; and, if 

 those cattle encroached upon tlie enclosure of an adjacent proprie- 

 tor, or anybody else, they were liable to distraint ; that is, liable 

 to be taken and held as a pledge for the payment of the damages 

 and whatever costs might arise. No man was obliged to build a 

 fence anywhere except by binding agreement, or by prescription ; 

 the common law was his fence. In some respects the common law 

 has been re-enacted by statute ; and in other cases, in relation to 

 fences, it has been modified, and in others, abrogated in part. 



As the law now stands, substantially, a proprietor may be held 

 to build a part of the partition fence when he himself cultivates, or 

 improves, or pastures along tlie side of the line ; and the adjacent 

 proprietor is obliged to build the other half of the fence, if he oc- 

 cupies, or cultivates, or pastures 0}/j30site that line. This is a 

 matter of statute — an abrogation of the common law in that 

 respect. If two men own each 100 acres of land adjoining each 

 other, and between them there is a lot line 160 rods long, and each 

 of them cultivates, pastures, or occupies along on one side and the 

 other of the line, each man is obliged to build one-half of that 

 fence ; and if the parties do not agree between themselves, then 

 either party may apply to the fence viewers of the town, who must 

 be chosen every year, to make an adjudication; and to make it cer- 

 tain that every town has fence viewers, the statute provides that 

 in case no fence viewers are elected, tlie selectmen of the town 

 shall bo the fence viewers. If, after due notice, on application to 

 the fence viewers by the opposite party, and an adjudication by 

 them of the portion which shall be assigned to each party to build, 

 the proprietor neglects for the spac(j of thirty days, to build his 

 half, which the fence viewers have assigned to him, the other 

 party may go on and build that other half which the adjacent pro- 

 prietor ought to have built, and may recover double what it cost 

 to buihl that fence, after the other party has had thirty days' 

 notice, and double the fees paid to llie fence viewers. This relates 

 to cases where the lands are cultivated. But suppose one man 

 cultivates all the way along on the line, and the other man does 

 not cultivate nor pasture at all — it is a mere waste, a common, or 

 wood-land ; then the proprietor who cultivates cannot compel the 

 .adjacent proprietor to build any fence at all, but he may go on 

 and build the whole of the fence, and then, if at any time the adja- 



