that A. ought to do the like in respect of the residue (r). From thence the inference, as we have mentioned in former page, is, not that either party is under a legal obligation to make the enclosure, but that each will be respectively answerable in case of damage, a circumstance which highly favours the creation of a fence (s). a As to the second point, it is the rule that a duty of fencing becomes extinguished by unity of possession, and that it is incapable of a revivor though the closes came afterwards into severalty (t). The plaintiff sued, in a modern case, as the owner and occupier of certain land called the Deans. The defendant was the owner and occupier of the next adjoining field called Dead Moor. These lands were separated by a fence and gate on the defendant's close. Both belonged to one C. thirty years before the action, and about that period C. sold the Deans to the plaintiff's father, and two years afterwards the Dead Moor to the defendant. The closes thus lost the unity. The repair of the gate lay upon the tenant of Dead Moor whilst C. was the sole proprietor of the property in both fields. An injury having occurred in consequence of the defendant's act in removing the gate mentioned above, the plaintiff brought an action upon the case, and proved that the tenant of Dead Moor had repaired the gate once under a threat of impounding between the time when the plaintiff's father had bought Deans and the defendant Dead Moor. He then shewed, that after the defendant's purchase of Dead Moor, the defendant himself repaired the gate at the instance of the plaintiff. These two examples of repair were relied on by the plaintiff's counsel as evidence of an agreement on (r) Dy. 372 (b). (s) See likewise Law Mag. vol. i. 590, "Law of Fences." Of the Obliga. repair Fences. tion to make or repair Fences. Of the Obliga- the part of the occupier of Dead Moor to do the repair tion to make or in question, and the learned Judge left it to the jury to say whether they would presume such an agreement, for, if so, the verdict would be for the plaintiff. The jury found that the defendant was bound by agreement to repair this gate. But the defendant's counsel, upon a motion for entering a nonsuit, urged strongly that a deed, which must have existed within thirty years in this case, could hardly have been laid aside or lost, and he added, that the Judge should have presented that suggestion more fully than he did to the minds of the jury. And of this opinion was the Court, who considered that the verdict ought to have been for the defendant upon this evidence. Upon no occasion had the defendant or his predecessor been acquainted that in case of trespass, the owner of Deans would look for compensation from the occupier of Dead Moor. The fact of repair, although done twice, did not distinctly shew that the occupier of Dead Moor had done so by virtue of any legal obligation. With respect to the extinguishment, Mr. Justice Bayley, who delivered judgment, observed, that a pre-existing obligation to repair is destroyed by unity of ownership, and, further, that it would not revive unless words should be introduced for that purpose into the deed of conveyance (u). Still, as there was evidence for the jury, slight indeed, but yet sufficient for their consideration, the rule was made absolute for a new trial, instead of a nonsuit, but without costs (x). Making and repair of Fences by virtue of Acts of Parliament.]-Fences are frequently repairable by virtue of particular acts of Parliament. The general Enclosure (u) 6 B. & C. 337. (x) 6 B. & C. 329, Boyle v. Tamlyn. By of the Obliga Act, for instance, affords an example of this nature. (y) See section 29, as to the mode of recovering it. tion to make or repair Fences. tion to make or Of the Obliga- boundary of any common fields or enclosed grounds shall repair Fences. happen to be a mound, fence, brook, or rivulet, the proprietors shall not be compelled to fence, but such mound, &c. shall be maintained and cleansed by the respective proprietors of the same in the same manner as before the passing of the act, or in such other manner as the commissioners may direct. Provided, nevertheless, that in case it shall appear to the commissioners that any proprietor may have a greater proportion of fences to make and maintain upon any allotment than, in the judgment of such commissioners, he ought to have, it shall be lawful to award a sum of money to be paid to that proprietor in respect of such repair, out of the money to be raised for defraying the expenses of the act, so that the boundary fences may be brought as near as may be to a just and equal proportion. By sect. 28, any person wilfully and unlawfully breaking down, destroying, carrying away, or damaging any fence, stile, post, rail, gate, bridge, or tunnel, which may be placed or put up under the authority of the act, shall forfeit, upon conviction before a justice for the county where the land is situate, the sum of 57., and any proprietor of lands within or inhabitant of the parish may give evidence notwithstanding he may be the owner of such fence, &c. (2). By 7 & 8 Geo. 4, c. 29, s. 40, if any person shall steal, or shall cut, break, or throw down with intent to steal, any part of any live or dead fence, or any stile or gate, he shall, upon conviction before a justice for the first offence, pay a sum, over and above the value of the article stolen or the damage done, not exceeding 5., and for any subsequent offence, he shall be committed to the house of correction for a term not exceeding twelve (z) See section 39, for the recovery of the forfeiture. calendar months, there to be kept to hard labour, and may, moreover, if a male, be once or twice publicly or privately whipped after the expiration of four days from the conviction. By 7 & 8 Geo. 4, c. 30, s. 23, similar punishments are ordained against such as shall unlawfully and maliciously cut, break, throw down, or in anywise destroy any fence of any description whatsoever, or any wall, stile, or gate, or any part thereof respectively (a). The reader will not have failed to notice the words "mound, brook, or rivulet," in the 27th section of 41 G. 3, c. 109, above set out. Upon the construction of a similar clause, it was made a question whether a ditch could be said to come within the description of a "sufficient fence;" the term employed, amongst others, in the particular enclosure act to which we refer. The clause alluded to was that the allotments of certain impropriators of tithes should be enclosed by fences of good and thriving quickset except where it should be directed that any other proprietor should fence, or where such allotments should adjoin to any enclosed lands, or be bounded by any river or other sufficient fence. The whole costs and expenses of making and keeping such fences, stiles, and (a) An ancient remedy for prostrating fences was by suing out a writ of noctanter. This was given by the statute of Westm. the Second, 13 Edw. 1, c. 46, which ordained that if the destroyer of a dyke or hedge could not be known by the verdict of an assise or a jury, and if men of the towns would not indict such as were guilty of the fact, then the towns near adjoining should be distrained to levy the hedge or dyke at their own cost, and to yield damages. This writ, however, is entirely out of use. See, however, upon the subject, 2 Inst. 476. Cro. Car. 280, 439, 580. 1 Sid. 107, 212. 2 Show. 255. 1 Lev. 108. 1 Lutw. 170. 3 Salk. 167. 10 Mod. 157. An information has, however, been preferred for a riot and prostrating fences, and so it would be now, for the riot would be the principal misdemeanor, and the destruction of the fences the aggravation, or accessory. See 1 Show. 106, Rex v. Berchet and Others. of the Obliga tion to make or repair Fences. |