SUFFICIENCY OF THE FENCE. 275 



It has also been held that the fence prescribed by statute 

 must entirely surround the land : proof that it was of lawful 

 height and strength where the animals broke through is not 

 sufficient.^*"' The law, it was said, would presume that cattle 

 were first tempted to break into the enclosure by reason of 

 the lowness of other parts of the fence.^"^ Therefore, an in- 

 struction that if the average height of the fence was the statu- 

 tory height, that was sufficient, was held erroneous.^"^ But 

 where the defendant entered the plaintifif's premises and left 

 a fence down, whereby stock entered and destroyed the lat- 

 ter's crop, it was held that the fact that the plaintifif's fence was 

 not as high in other places as the statute required was no de- 

 fence.^"* And other cases have held that the land need not 

 be surrounded by a statutory fence : it is sufficient if it fulfilled 

 the requirements where the animals broke through.^"* The 

 question seems to be largely one of interpretation of particular 

 statutes. 



Where the statute speaks of "unruly cattle that will not be 

 restrained by ordinary fences," "ordinary fences" does not 

 mean lawful fences, but such fences as are common and suffi- 

 cient to restrain orderly cattle.^"^ Where breachy animals 

 break through a defective fence, the plaintiff must show that 

 the alleged trespass would have been committed if the fence 

 had been such as a good husbandman ought to keep.^**^ In 

 Illinois partition fences must be at least five feet high and an 

 outside fence is sufficient if it would prevent the breaking in 

 of stock not breachy ;'"'' whereas, in Indiana, it is immaterial 

 whether any fences other than the outside ones were suffi- 

 cient.i"* 



"" Stovall V. Emerson, 20 Mo. App. 322; Smith v. Williams, 2 Mont. 195. 

 "' Polk V. Lane, 4 Yerg. (Tenn.) 36. '"" Prather v. Reeve, 23 Kan. 627. 

 '" Crawford v. Maxwell, 3 Humph. (Tenn.) 476. 



'°* Rice V. Nagle, 14 Kan. 498; Crane v. Ellis, 31 la. 510; Noble v. Chase, 

 60 id. 261. 



"' Hine v. Wooding, 37 Conn. 123. "' Phelps v. Cousins, 29 O. St. 135. 

 ™ Scott V. Wirshing, 64 111. 102; Scott v. Buck, 85 id. 334. 

 '" Crisman v. Masters, 23 Ind. 319. 



