BOUNDARY FENCES 371 



man ; they presented their report in May, 1904, and after it 

 had been referred to local Chambers it came before the Council 

 in November, and was adopted by a small majority. As this 

 is a question upon which opinion is very divided, this report 

 is worth quoting at length, together with the reservations of 

 four members of the Committee. It was as follows, the 

 historical introduction being omitted : 



13. Most agreements between landlord and tenant expressly 

 provide that fences shall be maintained by the tenant. In the 

 absence of such an agreement the tenant is still bound by an 

 implied covenant to do so. 



14. As between adjoining owners the position is briefly this. 

 By the common law of England " no one is bound to fence against 

 his neighbour's cattle." " An owner or an occupier of lands, 

 though bound to take care that his cattle do not wander from 

 his own land and stray upon the land of another, is under no legal 

 obligation to put up or maintain a fence so as to prevent the cattle 

 of his neighbour straying upon his land ; such an obligation can 

 only be founded upon a statutory obligation or some agreement or 

 covenant." (Hilton v. Ankesson, 27 L.T., N.S. 519 Exch., and 

 Boden v. Roscoe, 1894, 1 Q.B. 608.) 



15. Whilst such is understood to be the law, a custom has 

 sprung up which is generally observed by farmers throughout 

 the country, that where two fields are separated by a hedge and 

 a ditch, both, as a rule, belong to the field in which the hedge 

 is situated, the tenant of that field usually maintaining both, 

 thus benefiting the occupier on the other side. 



16. This custom has probably arisen through the fact that 

 the tenant of the field in which is the hedge has maintained it 

 in pursuance of his obligation to his landlord to do so, and in 

 consequence thereof there was no necessity for the other party 

 also to fence. But if the owner of the fence chose to remove it, 

 then the owner of the adjoining field would be "obliged to take 

 means to prevent his cattle from trespassing, such as by erecting 

 a fence, for he does not acquire any right to have the original 

 fence kept up, merely because the owner or his tenant has repaired 

 it for many years, simply for his own benefit, or in pursuance 

 of his covenant. 



17. If, on the other hand, it could be shown that the owner of 

 the fence had habitually repaired it on the demand of the other 

 party, or had repaired it obviously for the benefit of the other 

 party, and not merely to restrain his own cattle, then it might 

 be possible to establish a prescriptive right to have it so main- 

 tained in future. 



18. In view of this conflict between law and custom, it can 

 scarcely be contended that the present state of the law is alto- 

 gether satisfactory. In fact, if it were universally acted upon it 



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