loH DITCHES. 



siikted a fence Avitliin the provisions of tlie Geueral Euclosure Act, 41 

 Geo. III. c. 109 (U.K.). 



Vowles V. Miller, wliicli is a leading case on the law of ditches, was an 

 action by the tenant-in-fec of a close against the tenant-for-j-ears of an 

 adjoining close, for an injury to the plaintiff's reversion. The plaintiff 

 proved that the defendant had a close contiguous to a certain close of 

 the plaintiff's, and surrounded by a fence (which the defendant was 

 bound to keep in repair), consisting of a bank and ditch, and that in 

 scouring the ditch the defendant had dug into the hard unmoved virgin 

 soil of the plaintiff's close. The defendant, on the contrary, proved 

 that this fence had been imniemorially a bank with a ditch on the out- 

 side of it, and not a bank only ; and he contended that consequently 

 he was entitled at common law to have a width of eight feet, as the 

 reasonable width for the base of the bank and the area of his ditch 

 together, which width, measured from the interior line of the base of 

 his bank, he proved that he had not exceeded, admitting that if the 

 fence were a bank only, he was entitled only to four feet. It was there- 

 upon contended for the plaintiff that whether the defendant's fence 

 were a bank only, or a bank and a ditch, the action would lie, as the 

 ditch was cut by the defendant's express directions into the soil of the 

 plaintiff's close, so that it was made wider than ever it was before. 

 The jury found for the defendant; and a rule nisi, for a new trial, on 

 the ground that the verdict was against evidence, was discharged. 

 Lawrence J. thus stated the rule about ditching : "No man making a 

 ditch can cut into his neighbour's soil, but usually he cuts it to the very 

 extremity of his own land. He is of course bound to throw the soil 

 which he digs out upon his own land ; and often, if he likes it, he plants 

 a hedge on the top of it. Therefore, if he afterwards cuts beyond the 

 edge of the ditch, which is the extremity of his land, he cuts into his 

 neighbour's land, and is a trespasser. No rule about four feet and eight 

 feet has anything to do with it. He may cut the ditch as much wider 

 as he will, if he enlarges it into his own land" (3 Taunt. 138). 



An action on the case for not repairinf/ fences, yfhevehj another party is 

 damaged, can only be maintained against the occupier, not against the 

 owner of the fee not in possession, unless the owner was bound to repair 

 (Cheetham v. Ham])so?i). And 2^cr Lord Kenyan C. J. : "It is so noto- 

 riously the duty of the actual occupier to repair the fences, and so little 

 the duty of the landlord, that without any agreement to that effect the 

 landlord may maintain an action against his tenant for not so doing, 

 upon the ground of the injury done to the inheritance." And see 

 Payne v. Rogers (2 H. Bl. 349). 



If two iiersons are iwssessed of adjoining closes, neither leing wider any 



