THE FARMERS. 153 



His Honour, in lU'livciini; judgment, said that this was the first action of 

 the kind taken in this circuit. The law did not prescribe what material 

 must be used for making a fence, but there was the general law — applicable 

 to fences as to other matters — that a man must not do on his own land that 

 which became a nuisance to the public lawfully using a road on which his 

 land abutted. There was no express decision of the High Court applying 

 that maxim to barbed wire fencing, but there were three decisions in the County 

 Court condenmatory of such fences. His Honour referred to these cases, and 

 also to the case of "The Elgin Company Road Trustees v. Inncs," before the 

 Scotch Court of Session, in which a somewhat similar action was dismissed, but 

 with costs against the defendant. It was to be inferred from this case that 

 although barbed wire was not illegal for forming a fence alongside a public way, 

 yet the user of it, who constructed a fence of it, did so at his peril. There was 

 abundance of English authority for saying that if anyone lawfully using a high- 

 way sustained injury from a public nuisance made or maintained on or near the 

 highway, he had the right of action for such injury against the person making 

 or maintaining such nuisance. In the present case the fence was on a level 

 with the footpath, a position wliich is condemned as very dangerous by the case 

 in the Court of Session. It was true that the wire was attached to the poles on 

 the field side, and that the posts were closer together than in the Scotch case, 

 but the very accident itself which injured the plaintiff's macintosh, and caused 

 injury in two other cases, showed that those arrangements were not sufficient to 

 secure the public using the footpath from the dangers arising from the barbed 

 wire in the fence. He must, therefore, hold that this fence was dangerous to 

 the public using the path, and a nuisance, and that the plaintiff was entitled to 

 recover in this action unless he had been guilty of contributory negligence in 

 not taking due care. He did not think the evidence supported that view. A 

 gust of wind — a very ordinar\r occurrence — blew his coat against the fence, and 

 he did not think the plaintiff" had been negligent or careless. His judgment 

 must, therefore, be for the plaintiff, and for the amount claimed, but he would 

 give leave of appeal. 



The defendant carried his appeal to the Queen's Bench Division of the 

 High Court of Justice, and it was heard before Mr. Justice Wright and 

 Mr. Justice Matliew. The case was thought to be of such great public 

 importance that the committee of the Wirral Footpaths Preservation Society 

 decided to join in guaranteeing the costs to the plaintiff. The newspaper 

 account proceeds : — 



Mr. Justice Mathew, without calling upon the other side, said he was 

 satisfied that the County Court judge in this case was perfectly right, and had 

 disposed of it very properlj'. He came to the conclusion that the fact of this 

 barbed wire fence being in the position it was, made it a nuisance. That was 

 his judgment, and there appeared to have been abundant evidence that it was a 

 nuisance. There could be no question about its being a nuisance, if it was 

 dangerous to ordinary passengers upon the footway. The learned judge, who 

 appeared to have consulted a number of authorities for the purpose of disco- 

 vering a parallel case, was perfectly right in his decision ; and his lordship was 

 of opinion that the appeal should be dismissed with costs. Mr. Justice Wright 

 said he was of the same opinion. 



