314 STATE BOARD OF AGRICULTURE. 



as may be found standing and growing in the public highway, for the purpose 

 of repairs — that is, such material as may be properly used for that purpose. 

 This right would not allow the cutting down of valuable shade trees, properly 

 located. 



One who digs a pit, or has a dangerous opening upon his own land adjoining 

 a public highway, so that those using it with ordinary caution may fall into 

 it, is liable to one who, by such use of it sustains injury thereby. As, when 

 on-e left an unfenced hole upon his premises adjoining a highway, a person 

 passing along at night fell into the hole and was injured, the proprietor of 

 the hole was held liable for the injury. 



I have said that a person traveling on a public highway which has become 

 founderous and impassable, has a right to remove enough of the fences on the 

 adjoining land to enable him to pass around the obstruction, doing no unneces- 

 sary injury. Such right, however, is not to be exercised from convenience 

 merely, nor when, by the exercise of due care, after noticing the obstruction, 

 other ways may be selected and the obstruction avoided. But it is to be con- 

 fined to those cases of inevitable necessity or unavoidable accident, arising 

 from sudden or recent causes, which have occasioned temporary and impassa- 

 ble obstructions in the highway. What shall constitute such inevitable neces- 

 sity or unavoidable accident must depend upon the various circumstances 

 attending each particular case ; and one must be governed by common pru- 

 dence and common sense, having a due regard for the rights and interests of 

 the adjoining proprietor. 



In regard to what would constitute a lawful fence along the highway adjoin- 

 ing a farm, where the law makes it the duty of the farmer to build such 

 fence, it is perhaps sufficient to say that what would be a lawful line fence or 

 division fence would answer the law regarding a fence along the highway. 

 Modern improvements in the mode of fencing have led to considerable inquiry 

 on this snbject. The statutes of this State provide that "all fences, four 

 and a half feet high, and in good repair, consisting of rails, timber, boards, 

 or stone wall, or any combination thereof, or other things which shall be con- 

 sidered equivalent thereto, in the judgment of the fence viewers within whose 

 jurisdiction the same may be, shall be deemed a legal and sufficient fence." 



The question has arisen, and has been frequently asked, whether a barbed 

 wire fence is a legal and sufficient fence within the meaning of this statute. 

 I know of no statute or judicial decision which settles the question. I can, 

 therefore, only express my individual opinion, that a barbed wire fence, four 

 and a half feet high, in good repair, Avould meet the requirements of the 

 statute. But suppose the fence viewers within whose jurisdiction your fence 

 may be located should be called upon, and should say it is not — then what? 

 And suppose, in another jurisdiction, the fence viewers should say it was — 

 then what? The fact is that the Legislature which enacted the law knew 

 nothing about wire fences. They had not then been in use. Therefore, we 

 shall be obliged to await the judgment of the fence viewers — who are the 

 pathmasters in your neighborhood — and the decisions of the Supreme Court. 

 And, until the matter is settled, you only have my opinion that a barbed wire 

 fence is a good, cheap, substantial, and, if properly built and in good repair, 

 a legal and sufficient fence. 



The statute makes it the duty of every overseer of the highways to cause all 

 noxious weeds, within the limits of the highways in his district, to be cut 

 down and destroyed twice in each year, once before the first day of July, and 

 again before the first day of September, and the requisite labor shall be con- 



