DIVISION FENCES. 273- 



that lot were unlawfully there and no obligation rested upon 

 him to fence his lot against them." ®* 



Where A.'s cattle, lawfully on B.'s land, escape thence to 

 C.'s land through a defect in a division fence which B. was 

 bound to repair, A. is liable to C. for the trespass.®" But it 

 has been held also that if one voluntarily permits a stranger's 

 cattle to mingle with his on his own land and trespass upon 

 his neighbor's land, he is responsible for the damage done 

 by both, and may be regarded as "owner" pro hac vice of the 

 stranger's cattle within the meaning of a statute limiting the 

 liability to the "owner" of the trespassing stock.®^ Where A. 

 and B., who were adjoining land-owners, made an agreement 

 to repair a partition fence and A. leased the land, it was held 

 that his tenant could not have an action against B. for dam- 

 age by animals breaking through a fence that A. was bound 

 to maintain.®^ 



Where the plaintifif and A. owned adjoining tracts of 

 pasture land surrounded but not separated by fences, so as 

 to be in one enclosure, and the defendant purchased a part 

 of A.'s land, and, as a part of the agreement, A. separated by 

 a fence the defendant's land from the part retained by him, 

 and the defendant then used the plaintiff's land as well as his- 

 own for pasturing stock, it was held that the defendant was 

 not liable for the use of the plaintiff's land from the time the 

 fence was constructed between A.'s property and his own.®* 



The rule where the adjoining lands are purchased by 

 one person has been thus stated: "Where adjoining lands 

 which have once belonged to different persons, one of whom 

 was bound to repair the fences between the two, afterwards 

 become the property of the same person, the pre-existing ob- 



"' Lyons v. Merrick, 105 Mass. 71. 



" Stafford V. Ingersol, 3 Hill (N. Y.) 38. 



" Montgomery v. Handy, 62 Miss. 16. 



That trespass is not the proper remedy for damage to a crop by a 

 stranger's cattle through defendant's failure to fence, see Crawford v. 

 Hughes, 3 J. J. Marsh. (Ky.) 433. 



"' Baynes v. Chastain, 68 Ind. 376. °° Pace v. Potter, 85 Tex. 473. 

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