LEGAL DEPARTMENT. 603 



action for damages resulting to his own lands, crops, fruit trees and 

 shrubbery thereon, caused by the cattle of the adjoining owners pass- 

 ing over or through such defective fence. 



The law authorizes the electors of a town to declare by resolution 

 what shall be regarded as a lawful division fence. It is also provided 

 by the statutes of the State of New York that railroad corporations 

 and lessees of railroad corporations shall maintain fences on the sides 

 of the road of the height and strength of the division fences as 

 required by law, with openings and gates or bars therein, at the farm 

 crossings of such railroad for the use of the proprietors of the lands 

 adjoining such railroad, and shall also construct, where the same has 

 not already been done, and shall hereafter maintain cattle guards at all 

 crossings suitable and sufficient to prevent horses, cattle, sheep, and 

 hogs, from getting on to such railroad. So long as such fences are not 

 made or are not in good repair, the corporation or the lessees, or the 

 persons in the possession of the road, shall be liable for all damages 

 done by their agents or engines or cars to any domestic animal escaping 

 thereon because of such failure. When made and in good repair, they 

 shall, not be liable for any such' damages unless negligently or willfully 

 done. 



A sufficient post and wire fence of requisite height shall be deemed 

 a lawful fence within the provisions of this section, but barbed wire 

 shall not be used in its construction. 



Every adjoining land owner who, or whose grantor has received 

 compensation for fencing the land of land taken for a railroad, and has 

 agreed to build and maintain a lawful fence along such line, shall build 

 and maintain such fence. (Sec. 32, Chap. 565, Laws of 1890.) 



OVERHANGING TREES. 



A person owning a tree growing near a boundary line, though the 

 roots extend into the land of an adjoining owner and derive nourish- 

 ment therefrom, is the property of the owner of the land upon which 

 the trunk stands, and such owner is entitled to the fruit produced upon 

 the branches overhanging the adjoining lands. If force should be used 

 by the adjoining owner to prevent the owner of the tree from reaching 

 over and picking the fruit from the overhanging branches, he would have 

 a right of action against the party so interfering with him. Hoffman 

 V, Armstrong, 48 N. Y. 201, is a case where a lady whose father owned 



