No. 7. DEPARTMENT OF AGRICULTURE. 169 



his own cattle and to shut out the roving cattle of his neighbor. This 

 is the doctrine laid down in the celebrated case of (iregg vs. Gregg 

 reported in 55 Penna. State 227, but would not be the law to-day. 



If adjoining land owners agree not to make any common division 

 fence, each is liable to the other for the trespass of his cattle. But 

 where a division fence has stood for twenty-one years, one of the 

 owners cannot remove it without the consent of the other; neither 

 has he any ownership in the material of the part erected by himself; 

 and where one party unlawfully removes a portion of a partition 

 fence, and sets it upon his own ground, this does not authorize the 

 owner to fence up to it, on his neighbor's land, ^^either can one of 

 the owners of adjacent unimproved land call upon the other to con- 

 tribute to the charge of a division fence. 



The duty to maintain partition fences exists only where both par- 

 ties improve their lands. It would certainly not be just to make a 

 man, whose lands is in woods and not improved, and on which he 

 raises no crops, to pay expenses of maintaining and building a 

 fence which can be of no possible benefit to him. Hence the policy 

 of this law to compel those only who are benefited by the fence, to 

 either build it or be liable for delinquency in not building it. 



Aside from this, however, no man is compelled to build or keep in 

 repair a partition fence on the line between him and his neighbor. 

 If he prefers, he can have his own fence; but he must put it on his 

 own grounds, and maintain and keep it in repair at his own expense, 

 and if cattle break through his close and enter upon the lands of 

 another, he is liable; so, on the other hand, his neighbor can have 

 his own fence also; but he, too, must build on his own ground, and 

 will alike be liable in damages if his animals break over his close. 



If a division line between two farms passes through a wood lot, 

 neither of the owners is obliged to erect a fence; but if either 

 owner allows his cattle to pasture in the woods, he must not let 

 them pass the boundaries of his own laud, or he will be respon- 

 sible. - 



As to fences along the line of railroads, the law is somewhat 

 different. A railroad company is not bound to fence its road, and 

 is not liable to owners of stray cattle killed thereon. Neither is a 

 railroad comptiny liable for the value of cattle killed on its track, 

 though they escaped from a properly fenced enclosure without the 

 knowledge of the owner, and were killed at an intersection with a 

 public highway. And where a railroad company, in purchasing 

 the right of way, binds itself to fence the road through the other 

 party's land, but neglects to do so. if the cattle of the latter stray 

 upon the track, and are killed, the owner cannot recover for the in- 

 jury in an action (»f tort. Railroad companies are not bound to pay 

 for losses incurred by actual negligence; and if cattle unlawfully 

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