LAW OF THE FARM. 295 



But when a cow under such circumstances was injured by being driven off by 

 a dog set on by the owner of the land in which she was trespassing, it was 

 held by the Supreme Court of this State that he was not liable for the injury 

 unless there was something in the size, character, or habits of the dog, or iu 

 the mode of setting him on or pursuing, which would negative the idea of 

 ordinary care or prudence, which is equivalent to saying one must use ordinary 

 care and prudence in driving cattle off his premises, even when they are 

 wrongfully there destroying crops. Partition fences are quite generally, in 

 this country, matters of agreement between the respective occupants of land ; 

 each takes his proportion to build and keep in repair. 



Where there is no mutual arrangement they are generally regulated by 

 statute, and most of the questions which have arisen here upon this subject 

 have arisen under the various statutes which have been enacted in respect to it. 

 Each state has a statute of its own, and they are frequently changed. These 

 statutes are remedial, and intended to provide against existing defects in the 

 common law. They must therefore, receive a liberal or comprehensive con- 

 struction, both as to the extent of the change and the means of carrying them 

 into effect. The statutes of Michigan provides that when any controversy 

 shall arise about the right of the respective occupants in partition fences, or 

 their obligation to maintain the same, either party may apply to the fence 

 viewers, who are authorized to apportion to each his share thereof, and to 

 direct the time within which each party shall erect or repair his share of the 

 fence. If any party shall neglect or refuse to erect and maintain the part of 

 any fence assigned to him by the fence viewers, the same may be erected and 

 maintained by the aggrieved party, who shall be entitled to recover double the 

 value thereof. 



The statute further provides that the respective occupants of land enclosed 

 with fences, shall keep up and maintain partition fences between their own 

 and the next adjoining inclosure so long as both parties continue to improve 

 the same, I presume all are aware that a legal fence is one four feet and a 

 half high. Adjoining proprietors are always at liberty, if they see fit, to dis- 

 pense with partition fences all together, and if such fences are erected, no 

 particular part thereof belongs to either, to be kept in repair by him until in 

 some legal mode the partition is made; that is, either by agreement or by the 

 action of the fence viewers. Until one or the other has taken the necessary 

 steps to effectuate such a division, it is to be presumed he is satisfied to trust 

 his property to such securities as the rules of the common law, which I have 

 mentioned, can do for him, and to respond in damages under those rules if his 

 cattle commit injury on the lands of his neighbor. 



I received a letter yesterday from a farmer requesting me to define what 

 property belongs to real estate. He says : "Suppose I sell my farm, and there 

 are on it fence posts corded up, stones piled up, patent fence not used, lumber, 

 and cordwood, have I the right to take it as personal property?" This ques- 

 tion comes under the head of what we call the law of fixtures. This is a branch 

 of the law covering considerable legal territory. Mr. Ewell, of Chicago, quite 

 an eminent law writer, has given us a work on this subject of nearly 600 pages. 

 To define just what property belongs to real estate, and passes with it on sale, 

 would be attended with some difiiculty. Controversies involving this question 

 very frequently arise, and are often brought into litigation. 



Mr. Ewell says there is perhaps no legal term which has been used in so 

 many differing and often contradictory significations as the term " fixtures." 

 The contrariety seems to have arisen from the different standpoints from 



