Fence

A building or erection between two contiguous estates, so as to divide them, or on the same estate, so as to divide one part from another. It may be of any material presenting a sufficient obstruction; Allen V. Tobias, 77 111. 169; and has been held to include a gate; Estes v. R. Co., 63 Me. 308. See 19 Can. L. J. 204, Fences are regulated by local laws. At common law a landowner is not bound to fence against cattle; Collins v. Lundquist, 154 Mich. 058, 118 N. W. 596; Wood v. Snider, 187 N. Y. 28, 79 N. E. 858, 12 L. R. A. (N. S.) 912. In general fences on boundaries are to be built on the line, and the cost, when made no more expensively than is required by law, is borne equally between the parties; Norris v. Adams, 2 Miles (Pa.) 337; White v. Snyder, id.

395; Heath v. Ricker, 2 Greenl. (Me.) 72; Burrell v. Burrell, 11 Mass. 294; Holladay v. Marsh, 3 Wend. (N. Y.) 142, 20 Am. Dec. 678; Sharp v. Curtiss, 15 Conn, 526; Peschongs v. Mueller, 50 la. 237.

For modifications of the rule, see Palmer v. Silverthorn, 32 Pa. 65; Climer v. Wallace, 28 Mo. 666, 75 Am, Dec. 135. One adjoining land-owner can compel another to contribute to the expense of maintaining a partition fence only when the fence completes *an,lnclosure which contains no other lands than those of the latter; Kingman v. Williams, 60 Ohio St. 722, 36 N. E. 667; Alma Coal Co. v. Cozad, 79 Ohio St. 348, 87 N. E. 172, 20 L. R. A. (N. S.) 1092; Bouchereau v. Guilne, 116 La. 534, 40 South. 863. A partition fence is mlck y.

Tate, 20 111. 334; Boenlg v. Hornberg, 24 Minn. 307.

When built upon the land of one of them It is his; but if it were built equally upon the land of both, at their Joint expense, each would be the owner in severalty of the part standing on his own land; 5 Taunt 20; 2 Greenl.

Ev. § 617. See 2 Washb. R. P. 70.

It was held in Barger v. Barringer, 151 N. 0. 433, 66 S. B. 439, 25 L. R. A. (N. S.) 831, 19 Ann. Cas. 472, and note, that maliciously to erect a fence on one’s property to cut off light and air from his neighbor’s property is actionable. The opinion of the court and a dissenting opinion discuss the subject on both sides very fully, the latter taking the ground that “malice disconnected with the infringement of a legal right is not actionable.” The same rule was laid down in Peek v. Roe, 110 Mich. 52, 67 N. W. 1080; and in Burke V. Smith, 69 Mich. 380, 37 N. W. 838, Campbell, J., dissenting. The contrary rule was sustained in Koblegard v. Hale, 60 W. Va. 37, 53 S. B. 793, 116 Am. St. Rep. 868, 9 Ann. Cas. 732; Oilier v. West, 162 Ind. 17, 69 N. B. 548. The subject is regulated by statute in some states.

See Horan v. Byrnes, 72 N. H. 93, 54 Atl. 945, 62 L. R. A. 602, 101 Am. St. Rep. 670; Healey v. Spaulding, 104 Me. 122, 71 Atl. 472; Lord v. Langdon, 91 Me. 221, 39 Atl. 552; Scott v. Wilson, 82 Conn. 289, 73 Atl. 781; Brostrom v. Lauppe, 179 Mass. 315, 60 N. B. 785; Rideout v. Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560; Smith v. Morse, 148 Mass. 407, 19 N. E. 393.

Under such statutes “malevolence must be the dominant motive”; Barger V. Barringer, 151 N. C. 433, 66 S. B. 439, 25 L. R. A. (N. S.) 831, 19 Ann. Cas. 472. A class of cases has arisen, in this country, regarding the responsibility of railroad companies for protecting their tracks by fences. In some cases they are required by statute to do so, but unless so required they are not under any obligation to do so, having no other duty than other land-owners; 3 Wood, R. R. 1843; Carper v. Receivers of Norfolk & W. R. Co., 78 Fed. 94, 23 C. 0.

A. 669, 35 L. R, A. 135.

A railroad company, when not required by law to fence its tracks, in doing so only exercises extraordinary diligence to prevent danger to cattle, and is not liable if it fails to maintain such fence; Chicago, R. I. & P. Ry. Co. V. Woodworth, 1 Ind. T. 20, 35 S. W. 238. When the company is required by statute to fence its track, it is only bound to the exercise of reasonable care in maintaining H; Coe v. R. Co., lOPMinn.

12, 111 N. W. 651, 11 L. R. A. (N. S.) 228, 11 Ann. Cas. 429; Case v. R. Co., 76 Mo. 670;.

Hendrickson V. R. Co.,' 68 N. J. L. 612, 64 Atl. 831; a failure renders it liable to an employ6 for an injury caused thereby; Atchison, T. & S. F. R. Co. V. Reesman, 60 Fed. 370, 9 C. C. A. 20, 23 L. R. A. 768; and see tracks “to prevent the entrance of cattle upon the road” imposes no duty except as to adjoining owners; Byrnes v. R. Co., 181 Mass. 322, 63 N. B. 897. In New York Cent & H. R. R. Co. V. Price, 169 Fed. 330, 86 C. O. A. 602, 16 L. R. A. (N. S.) 1103, it was held (following the last cited case) that in the absence of legislation there is no legal duty imposed on a railroad company to safeguard children trespassing on its land; and to the same effect Nolan v. R. Co., 63 Conn. 461, 4 Atl. 106; Western & A. R. Co. v. Rogers, 104 Ga. 224, 30 S. E. 804; Lake Shore & M. S. Ry. Co. V. Liidtke, 69 Ohio St. 384, 69 N. B. 653; Mc Cabe v. Woolen Co., 124 Fed. 287. That such a statute is for the protection of, persons as well as Uve stock is held in some jurisdictions; Rosse V. Ry. Co., 68 Minn. 216, 71 N. W. 20, 37 L. R. A. 691, 64 Am. St. Rep. 472; Nickolson v. Ry. Co., 80 Minn. 508, 83 N. W. 454, where it is said, as the duty to fence is absolute, a violation of such duty is evidence of negligence; Hayes v. R. Co., Ill U. S. 228, 4 Sup. Ct 369, 28 L. Ed. 410. That a landowner must fence his land, if he has reason to think that children may trespass thereon and be injured, is not an established rule of general law to be applied by federal courts, or at the discretion of a jury in such courts, even when sitting in a district where such rule of law prevails; New York Cent & H. R. R. Co. v. Price, 159 Fed. 330, 86