13i. REPAIR OF FENCES. 



principally on the authovit}' of Ilex v. Flcclowic, that tlie Uahirdy to 

 repair a hiylacay, ratione ckmsurm, is only on the occupier of the lands 

 inclosed, and not on the owner. And ^w Erie J., the liability does not 

 attach -where the way is not immemorial, or where the land inclosed has 

 not been used for passage before the iuclosure. In Rex v. Fkdcnow, the 

 parish was indicted, and pleaded that AYatson, by reason of the tenure 

 of lands inclosed by him, ought to repair, and the prosecutor replied 

 that this laud was inclosed under an Inclosure Act, and that Watson 

 was allottee of an allotment, and therefore made the inclosure ; and it 

 was decided that as Watson had a lawful right to inclose he incurred no 

 liability to repair by reason of doing so. And semhU there is no general 

 rule of law, imposing the obligation on the owner or occupier of lands 

 alutiing on a jmdlic road, to keep up the fences. Fer Kinder sley Y.C. 

 {Potter V. Parry). 



In Boyle v. Tanilyji the whole subject of the ohliyation to fence was 

 much considered. Tlie plaintiff owned The Deans, and the defendant a 

 close adjoining it, called Deadmoor, which was separated from The 

 Deans by a fence with a gate, erected on the defendant's land. They 

 formerly belonged to one Coffin, who thirty years since sold The Deans 

 to the plaiutifi''s father, and two years afterwards Deadmoor to the 

 defendant. The gate in the fence was repaired by the tenant of Dead- 

 moor whilst Coffin owned all the lands. In those two years the cattle 

 of Fry, the tenant of Deadmoor, trespassed upon The Deans, and the 

 plaintiff's father gave Fry notice that unless he repaired the gate he 

 would impound his cattle. Fry did repair it, and so did the defendant 

 on a similar request from the plaintiff's father. Littledale J. thought 

 that there was some evidence to go to the jury, from which they might 

 l)resume that there had been an agreement between the plaintiff's father 

 and the defendant that the gate should be kept up by the latter for the 

 benefit of the plaintiff, telling them that in point of law the obligation 

 to repair the gate, if any, could only be created by special agreement 

 between the parties, regard being had to the fact that the land of each 

 party had originally belonged to Coffin. The jury found that the 

 defendant was bound by agreement to repair the gate, a verdict at 

 which the learned judge, in Banco (who had pointed their attention to 

 the fact, that in no instance had the defendant permitted the plaintiff to 

 do any act upon the defendant's land, and that he might fairly say that 

 he repaired the gate for his own benefit, to prevent his own cattle from 

 trespassing on the plaintiff's land), expressed his surprise, and leave for 

 a nonsuit having been reserved, a new trial was granted without costs. 



Baytcy J. remarked that " a man is under no ohliyation to Tceejj v/p 

 fences let ween adjoininy closes of vhicJt he is owner; and even where 



