¶1The opinion of the Court was delivered, by
¶2“When any two persons shall improve lands adjacent to each other; or where any person shall enclose any land adjoining to another’s land already fenced in, so that any part of. the first- person’s fence becomes the partition fence between them,” are the two cases provided for in the Act of Assembly of 11th March, 1842, for regulating and maintaining line fences: Dunlop 954. In either of these cases, the expense of the partition fence is to be equally borne and maintained by both parties. But if one of the adjacent improvers abandon the division line, and set his fence in upon his own land, and throw out a lane to public use, which he has a perfect right to do (see Painter v. Reece, 2 Barr 126, and Dysart v. Leeds, 2 Barr 488), they no longer improve adjacent lands, and are not within the statutory remedy. Such is this case. John Rohrer having lost the use of a lane, long enjoyed between him and Christian Rohrer, by Christian’s moving his fence over and appropriating the lane to himself, removed back upon his own land far enough to furnish another lane, and there built his fence. The lane thus produced is open to the public. It is open at both ends, and the proof is that Christian’s cattle use it. It amounts to a dedication of it to the public use. It is no longer improved land, therefore, within the meaning of the Act of Assembly. Yet Christian claims that John should defray half the expense of building the fence on his, (Christian’s) side, of this lane. As well might John insist that Christian should maintain half of Ms fence. This would bring them back to the true ground; that each must maintain his own fence along the lane without calling on the other for help. The fence viewers had no jurisdiction of the case, and the judgment of the Court below, founded on their award, is reversed.