tion to make or Of the Obliga- gates in good repair for seven years, to be deemed and repair Fences. considered as part of the expenses of carrying the act into execution, and to be borne by the persons whose lands and grounds were to be discharged from tithes by virtue of the act in such proportions as the commissioners should direct. The clause went on further to enact that such fences should, after the expiration of the said term of seven years, be maintained and kept in repair by the persons whom the commissioners should, by their award, direct to perform the same. An old deep ditch or drain was the fence in question upon this occasion. It had been immemorially the boundary between the common and the two adjoining townships. No hedge or rail protected this ditch, but the surveyor to the commissioners swore, that the fence was, in the judgment of the commissioners, a sufficient fence, in its then state. Abbott, C. J., referred to the general Enclosure Act, 41 Geo. 3, c. 109, s. 25, 26, and 27, and construing the act before him with the general act, held, that a mere ditch could not be a fence within the meaning of those provisions. A verdict was therefore found for the plaintiff upon the issue, but his Lordship gave leave to enter a verdict for the defendant. A rule was moved for, accordingly, and it was said that "fence" meant nothing more than a sufficient guard to fend, or keep off, or shut out, and the Court considering that a ditch might in legal construction be a fence, directed that the rule should be absolute for entering the verdict as prayed for (b). By 4 Geo. 4, c. 95, s. 66, where, in private grounds, or across any public or private footway, an old road is altered, or a new one made, or where any fence is taken (b) 1 B, & C., 70, Ellis v. Arnison; S. C., 2 D. & Ry. 161. away for the purpose of widening or improving a road, the trustees shall have proper quickset hedges planted, or have proper fences or walls made on both sides of the newly made road, or on the side from whence the fence has been removed, with sufficient ditches and sufficient posts and rails, or other fence on both sides of such quickset hedge to protect its growth, so as effectually to guard and fence off the adjoining lands from trespass or injury by horses, asses, cattle, sheep, or swine. They are also to make proper gates, stiles, posts, bridges, and arches where necessary, out of such road into the lands adjoining, and must keep the fences so to be made in good order and repair for five years, unless the owners should agree to repair from an earlier period. We, therefore, see that, under these acts of Parliament, the burthen of repair is often cast upon the trustees or makers of the road for a certain number of years, and then upon the proprietors of the lands. Where, however, no liability is imposed upon those who meddle with the road, or who are charged with carrying out the enclosure, the owners become clothed, in the first instance, with the duty of repair as in an ordinary case at common law. Even although trustees may have repaired fences for twenty years, they cannot be compelled to continue such repair in the absence of a special provision to that effect. A mandamus was applied for, commanding certain trustees to repair a wall on each side of a road leading through the churchyard of Llandilofour, in Carmarthenshire. The clause in their act ordered that the tolls should be applied towards repairing and widening the roads within their respective districts, but was entirely silent on the head of fences. The Court, therefore, were quite clear that the application must fail. And Grose, J., added, Suppose that trustees under an act of Parliament make of the Obliga tion to make or repair Fences. tion to make or repair Fences. Of the Obliga a road through private property, for which the party is entitled to satisfaction, the jury in assessing the damages must be taken to give him as much as will, besides the value of the land, indemnify the party for the expense of keeping up the fences between the road and the enclosure" (c). So where a person gave permission to trustees to make a way through his land, but omitted to obtain from them a promise to put up a fence upon the completion of their undertaking, he was held personally responsible to his neighbour for damage done in consequence of the want of a fence, for it was his fault, and not that of the plaintiff, that the proper stipulation had not been originally asked at the hands of those who made the alteration in the premises (d). Nevertheless, a mandamus will probably lie where trustees are directed to make good and permanent enclosures, but where instead thereof they only erect insufficient fences (e). By 6 & 7 Wm. 4, c. 115,, the act for facilitating the enclosure of open and arable lands in England and Wales, sect. 27, ring or outer fences which may be necessary, and which shall be ordered by commissioners for dividing the various parcels of land, are to be made. But if the proprietors of enclosures shall desire and shall give notice in writing to that effect, that their allotments should remain unfenced, except the ring or outer fence above-mentioned, the commissioners need do no more than set out the respective parcels by metes and bounds, without requiring any subdivision fences to be erected. By sect. 30, after premising that rectors or vicars may require interior or subdivision fences for their allotments, (c) 2 T. R. 232, R. v. Commissioners of Llandilo District of Roads. (d) 3 Y. & Jer. 308, Winter v. Charter. and that such fences will be attended with considerable expenses, it is enacted, that such fences may be made by the rectors or vicars under the direction of the commissioners, and, moreover, that for the payment of the expenses, the allotments may be charged with two years' annual value to be set apart for the purpose of defraying the same. By sect. 32, if any proprietor shall not have an equal or proportionable quantity of boundary mounds or fences allotted to him, the commissioners may make an equitable apportionment, so that contribution shall be afforded by the other proprietors to the person whose boundary is unequal, and the money awarded in respect thereof shall be levied and recovered in the same manner as other expenses incurred under the act. By sect. 49, the expenses of the act, and, amongst others, of the fences, are to be borne by all the proprietors of the land authorized to be divided, allotted, and enclosed in such proportions as the commissioners shall determine, and such expenses shall be paid according to the commissioners' order, notice thereof being previously given thirty days before the payment shall be required. Provisions under the Highways Act, 5 & 6 Wm. 4, c. 50, with respect to Fences.]-By the 65th section of this act it is provided that if the surveyor shall think that any carriageway or cartway is prejudiced by the shade of any hedges, or by any trees (except those trees planted for ornament or for shelter to any hop-ground, house, building, or court-yard of the owner thereof), growing in or near such hedges or other fences, and that the sun and wind are excluded from such highway, to the damage thereof, or if any obstruction is caused in any carriageway or cartway by any hedge or tree, it shall be lawful for any one justice of the peace, on the application of the of the Obliga tion to make or repair Fences. repair Fences. Of the Obliga- said surveyor, to summon the owner of the land on which tion to make or such hedges or trees are growing next adjoining to such carriageway or cartway to appear before the justices at a special sessions for the highways to shew cause why the said hedges are not cut, pruned, or plashed, or such trees are not pruned or lopped, in such manner that the carriageway or cartway shall not be prejudiced by the shade thereof, and that the sun and wind may not be excluded from such carriageway or cartway to the damage thereof, or why the obstruction caused in such carriageway or cartway should not be removed: and the question as to the cutting, pruning, or plashing such hedges, or the pruning and lopping such trees, or the removal of such obstruction as aforesaid, shall, upon proof of the service of such summons, and whether the said owner attend or not, be determined at the discretion of such last-mentioned justices; and if such justices shall order and direct that such hedges shall be cut, pruned, or plashed, or such trees pruned, or lopped, in manner aforesaid, or such obstruction removed, the said owner shall comply therewith within ten days after a copy of such order shall have been left at the usual place of abode of the said owner or of his steward or agent, and in default thereof shall forfeit on conviction a sum not exceeding forty shillings; and the said surveyor, if the order of the said justices is not complied with, shall, and he is hereby authorized and required to cut, prune, or plash such hedges, and to prune and lop such trees, for the benefit and improvement of the highway, and to remove such obstruction as aforesaid, to the best of his skill and judgment, and according to the true intent and meaning of this act, and the said surveyor shall be reimbursed by the owner as aforesaid what charges and expenses he shall be at in cutting, pruning, and plashing |