Common Law and Pence Prescriptions. 11 



to fence them out. It was necessary therefore, at common law that every 

 man should maintain a personal watch over his own animals, or surround 

 his land with a fence. 



Important modifications of the common law were made necessary by the 

 situation in which the English colonists found themselves in this country at 

 first arrival, and for a long time afterward. For want of proper pasturage, 

 and from the vast extent of unimproved lands, it was necessary and desirable 

 that the cattle should be permitted to go at large for. subsistence, and in the 

 sparse settlements and scarcity of inhabitants it was impossible to watch the 

 beasts to prevent their trespass upon improved lands. Every land owner 

 therefore was required by statutory provisions to erect and maintain sufficient 

 fences about his cultivated tracts, or forego all compensation for damages 

 from trespassing beasts, in the absence or insufficiency of such fences. In 

 every state in the union, from the earliest times, it has been made compulsory 

 the land owner to maintain good fences for the protection of crops ; to 

 to fence the animals out, rather than to fence them in. 



It has been abundantly established as perfectly competent for the legis- 

 latures of the several states to pass laws regulating the subject of boundary 

 and division fences ; and that inasmuch as the common law does not require 

 parties to maintain fences, statutes regulating the same are remedial, and 

 intended to adapt existing defects in the common law to the special needs or 

 customs of communities. 



But all such modifications are made the subject of express statutes. In- 

 deed the sole obligation to fence is founded upon some agreement, or statute 

 prescription. Thus the rule for partition fences adapts itself to the 

 condition of two adjoining land owners, upon each of whom rests the care 

 of his own beasts. Each must fence against the other, if he cares to fence 

 at all ; and as two parallel fences would be useless expense, the provision 

 exists requiring and enforcing maintenance by each, of his own portion of the 

 dividing fence. It is a well established principle of fence law that no one 

 but the adjoining owners or possessors have any interest in the duty or obliga- 

 tion to build or maintain a division fence, which exists only as against the 

 adjoining tracts, where both owners seek benefits from the fence. 



Another important modification of the common law, now reappearing in 

 new legislation in several Southern states, pertains to ring or circular fences, 

 built and maintained by owners of tracts enclosed for common protection 

 of their fields ; thus kept within such enclosures without the expense of inner 

 partition fences. This custom, in some form, has prevailed in America from 

 the earliest settlement. 



SOUTHERN FENCE LAWS. 



The southern fence system has from the first been strongly marked with 

 these general facts of fence history, and the particular discriminations referred 

 to, derived from special local needs and customs. 



By the laws of most of the Southern states the owner of stock is under no obli- 

 gation to restrain them to his own grounds, and is not responsible for their tres- 

 passes on the lands of others not properly fenced (7 Jones 468), and this 

 principle is not changed by the new system of fencing to inclose large tracts, by 

 counties or townships. As to strictness of the rule of " sufficient fences" it 

 has been held by a common court in a case of trespass, that if any part of the 

 enclosure trespassed upon be under a fence of less than the prescribed height, 

 though it was shown that the beasts had passed at a part of the fence of law- 

 ful height, the plaintiff could not recover, the court declaring that the law 

 will presume the cattle were first tempted to break into the enclosure by 

 reason of the lowness of other parts of the fence. (Cowen 421.) 



