Boundary Fences. 
439 
use his diligence to keep him shut up, if he escape and do harm, 
the owner is liable to answer in damages. 
"As Mr. Justice (afterwards Lord) Blackburn said in the case of 
Fletcher v. Rylands, ' The person whose grass or corn is eaten down 
by the escaping cattle of his neighbour is damnified without any 
fault of his own, and it seems but reasonable and just that his 
neighbour, who has brought something on to his own property which 
was not naturally there, harmless to others so long as it is confined 
to his own property, but which he knows to be mischievous if it gets 
on his neighbour's, should be obliged to make good the damage which 
ensues if he does not succeed in confining it to his own property.' 
This, then," continued his Honour, "being the general rule of law, is its 
operation at all qualified or affected by the fact of the owner of the 
land on which the trespass is committed having himself for his own 
purposes built a fence wall, which, if kept in repair, would protect 
him against his neighbour's sheep 1 In the absence of any contract 
between the adjoining owners as to the maintenance of the wall (of 
which in the present case there is not the slightest evidence), it is 
obvious that the owner of the wall, who built it for his own conve- 
nience, might of his own free will take it down and remove it, just 
as he might any other building on his land, unless the adjoining 
owner had in the meantime acquired the right to have the wall 
maintained for his own protection ; and this brings me to the really 
difficult question in this case — viz., Can the defendants successfully 
urge by way of defence to the undoubted trespass that they had a 
prescriptive right to have the wall maintained, and that the trespass 
is due to the plaintiff not having kept the wall in repair ? It is 
well settled that an owner of land may be bound by prescription to 
maintain and repair a fence for the benefit of the owner of the ad- 
joining land, who may have a corresponding right to have the fence 
so maintained. Whether such a right has been acquired depends of 
course upon the evidence adduced in each particular case. 
" What are the facts here ? The wall is admittedly an old one, 
probably built at the time when the waste lands of Castleton and 
Bradwell were inclosed at the end of the last or the beginning of the 
present century. At the trial I asked for the Inclosure Awards, or 
extracts from them, because I thought it probable that the obligation 
to make and maintain this north wall would be thrown on the 
allottee of Fisher's Piece, especially as it formed the boundary line 
between this piece and the adjoining parish of Castleton. I have not 
been supplied with this information, and, whatever the probabilities 
may be, I cannot of course assume as a fact proved that the obligation 
to maintain this wall was thrown by the award on the owner of 
Fisher's Piece. But, at any rate, there is this solid fact to rest upon. 
The wall unquestionably belonged to the owner of Fisher's Piece ; 
and it was important, if not absolutely necessary, that it should be 
maintained, not merely as separating the properties of two private 
owners, but as the boundary between two adjoining parishes. The 
only person who could properly repair the wall was the owner of 
