LAW ABOUT FENCES. 129 



powers cannot be enlarged beyond a foir and strict construc- 

 tion of the statutes conferring the power. 



An owner of land may be released from obligation to main- 

 tain division fences when he ceases to improve his lands and 

 chooses to let them lie in common. In the event that he has 

 been obliged to maintain a fence, and ceases to improve his 

 lands, a notice of six months to the adjoining owners, accord- 

 ing to the statute provisions, becomes necessary in order to 

 free himself from the obligation to repair. 



These fomiliar principles respecting rights of owners in and 

 liabilities of owners to maintain division fences are so partic- 

 ularly set forth in the General Statutes, it is idle to more than 

 refer to them. But there are some questions that are not 

 referred to in the statutes, that demand atfention. There is 

 in tliis Commonwealth no obligation imposed upon the owners 

 of land to fence against the public liighways, and if a person 

 is injured in his land by beasts of any description belonging 

 to another, which escape upon his land from a highway ad- 

 joining, either because there was no fence or because the fence 

 was insufficient, he may recover his damage in an action of tort 

 against the owner of said beasts. K they escape over a "divi- 

 sion fence " which was insufficient and that insufficiency was 

 caused by the neglect of the person who claims to have been 

 injured to maintain his part of the division fence, the owner 

 of the beasts is not liable for any damages they may have 

 done. 



I know of no principle that excuses the owner of beasts 

 from the liability to pay for all damage that they may do to 

 the crops or lands of another, unless such damage is the result 

 of their escape over the division fence, which by law the 

 owner of the land was obliged to keep in repair, but which he 

 had suffered to get out of repair, and even then a distinction 

 is made, and in order to excuse the owner of the beasts it 

 must appear that they were laicfuUy on the adjoining land. 

 For instance, suppose that the cattle of A. from any cause, 

 escape from his land upon the land of B. and thence from B's 

 land, to the land of C, where they do injury to his lands. 

 Now the fact that in escaping from B's land they escaped 

 therefrom in consequence of the insufficiency o the fence, 

 which C. was bound to keep in repair, does not avail A. so as 

 17 



