274 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



ligation to repair the fences is destroyed by the unity of 

 ownership. And where the person who has so become the 

 owner of the entirety afterwards parts with one of the two 

 closes, the obligation to repair the fences will not revive, un- 

 less express words be introduced into the deed of conveyance 

 for that purpose." "* 



In Alabama it was held that where there was a statutory 

 obligation upon adjacent owners for the joint maintenance of 

 the whole of a fence, even if there were a special contract that 

 each should keep up one-half, neither could recover for the 

 trespass of the other's cattle, the remedy being an action for 

 breach of contract. ^^ This decision, however, seems to stand 

 alone, and is opposed to the rule laid down in the above cases. 



73. Sufficiency of the Fence. — The question as to the suffi- 

 ciency of the fence to turn off animals is one ordinarily for the 

 jury. It is frequently, however, a matter of statutory regula- 

 tion. It has been held that no action lies for injuries sus- 

 tained by the trespass of animals, unless the lands are sur- 

 rounded by a statutory fence.®^ But a substantial compliance 

 with the statute is sufficient : an immaterial variation in height 

 from a lawful fence will not defeat the action.®'^ Other cases 

 have held that a fence need not be a statutory one. If it is 

 sufficient to exclude ordinary cattle this is all that is neces- 

 sary.^* In a California case it is said : "A fence which forms 

 a perfect enclosure and is sufficient to turn stock, which is 

 good, strong and substantial and built of stone, must, we 

 think, be the equivalent of the lawful fences specifically de- 

 scribed in the statute." ®* 



" Boyle V. Taralyn, 6 B. & C. 329, 337. 

 "'' Walker v. Watrous, 8 Ala. 493. 



°° Mann v. Williamson, 70 Mo. 661 ; Pruitt v. Ellington, 59 Ala. 454. 

 "' Smith V. Williams, 2 Mont. 195. 



"' Finley v. Bradley (Tex. Civ. App.), 21 S. W. Rep. 609; Davis v. 

 Davis, 70 Tex. 123; Race v. Snyder, 10 Phila. (Pa.) 533. 

 ■" Meade v. Watson, 67 Cal. 591. 



