308 BOARD OF AGRICULTURE. 



cattle pass upon the enclosure of B, or B's cattle upon the enclosure 

 of A through such fence, what are the rights of the parties ? 

 They are precisely as at common law. Where two parties agree 

 together jointly to build a fence and keep it in repair, and both 

 act diligently or otherwise in doing it, if A's cattle come upon 

 the enclosure of B, by reason of a defect therein, A must pay B for 

 the damages they actually commit. There is only one exception 

 to this matter of trespass, or right to impound, where cattle break 

 in upon your enclosure. If A and B agree to build a line fence in 

 separate parcels, A this half and B that half, or the fence viewers 

 establish the portion that each party shall build, or if a di%'ision is 

 established by prescription and A does not keep up his part of the 

 fence as good as it ought to be, if B's cattle break in upon A, be- 

 cause A's half is defective, A cannot recover. Suppose B's half 

 is defective, and A's cattle break in through B's half, which B 

 ought to have kept in repair, B can not recover. In other words, 

 where a man has a particular part of a fence allotted to him to 

 keep in repair, if he fails to keep that special part in repair, and some- 

 body's cattle, being lawfully on the adjoining close, break through 

 that particular part, which he alone was to keep in repair, then he 

 cannot recover if the fence is defective, because the injury was the 

 result of his own neglect ; but the joint fault of himself and his 

 neighbor will not excuse his neighbor, or anybody else. All 

 fences four feet high and in good repair, consisting of rails, 

 timbers, boards, or stone walls, and brooks, rivers, ponds, creeks, 

 ditches and hedges, or other things, which, in the judgment of the 

 fence viewers having jurisdiction thereof, are equivalent thereto, 

 shall be accounted legal and sufficient fences. 



JNo man is obliged to build any fence upon the highway. That 

 matter remains precisely as at common law. To step aside a mo- 

 ment from this legal discussion, I will say that in my opinion we 

 ought not to have any road fences. We do not require any new leg- 

 islation, however, in relation to this matter. If every man would 

 throw down his road fence, and would cither impound or take in 

 trespass those cattle which encroach upon him, the whole matter 

 would be settled. But that feeling which farmers like to have, of 

 security, by night as well as by day, has induced them to build 

 these fences, at a very large expense, vastly beyond, as I heard a 

 member of this Board say, what any man would at first estimate. 

 You are not obliged to build these fences, and if anybody's cattle 

 get into your fields along the highway, whether j'ou have a fence 



