use, or suffer the same to be lost or expended in any other way or manner than that designated by law, such officers or persons shall be deemed guilty of embezzlement, and after conviction thereof, shall be punished by imprisonment in the penitentiary not less than one year. [1872, § 5, 12. G. S. § 16, 79.]

COUNTY AGRICULTURAL SOCIETIES.

SEC. 12. [County aid.-Whenever twenty or more persons residents of any county in this state shall organize themselves into a society for the improvement of agriculture within said county, and shall have adopted a constitution and bylaws agreeable to the rules and regulations furnished by the state board of agriculture, and shall have appointed the usual and proper officers, and when the said society shall have raised and paid into the treasury, by voluntary subscription or by fees imposed upon its members, any sum of money, in each year not less than fifty dollars, and whenever the president of such society shall certify to the county clerk the amount thus paid, it shall be the duty of the county clerk to draw a warrant in favor of the said president for a sum equal to three cents on each inhabitant of said county upon a basis of the last vote for member of congress, allowing five inhabitants for each vote thus cast, and it shall be the duty of the treasurer of the county to pay the same: Provided, That if any existing county agricultural society fails or has failed for two or more years, to hold an annual fair of at least three days duration, then any agricultural society in the county formed for a similar purpose, and governed by the rules of this chapter and who shall hold an annual fair of not less than three days duration, may apply for and shall receive from the county treasurer the amount above provided to be paid, to which amount they shall be entitled for so long a period as they may comply with the conditions of this act. [R. S. 3. 1869, 217. G. S. 65, as amended Mar. 3. Took effect June 1, 1881.]

SEC. 13. [Premiums awarded.]—All county agricultural societies organized pursuant to law, shall annually offer and award premiums for the improvement of soil, crops, tillage, manures, implements, stock, articles of domestic industry, and such other articles, productions, and improvements as they may deem proper, and perform all such acts as they may deem best calculated to promote the agricultural and manufacturing interests of the county and state. And it shall also be their duty so to regulate the amount of premiums and the different grades of the same, as to enable farmers of small as well as large means to compete therefor; and in making the awards special reference shall be had to the profits which may accrue or be likely to accrue from improved methods of raising crops, or of the fabrication of the articles thus offered, with the intention that the premiums shall be given for the most economical mode of improvement. All persons offering to compete for premiums on improved mode of tillage, or the production of any crops or other articles, shall be required, before such premiums are adjudged, to deliver to the awarding committee a full and correct statement of the process of such mode of tillage or production, and the expense and value of the same, with a view of showing accurately the profits derived or expected to be derived therefrom. [1879, § 11, 399.]

SEC. 14. [List of awards-Report to state board.]-It shall be the duty of each county society to publish annually a list of the awards, and an abstract of the treasurer's account, in such manner as the society may direct, and to make a report of their proceedings during the year, and a synopsis of the awards for the improvements in agriculture and manufactures, together with an abstract of the several descriptions of these improvements; and also to make a report of the condition of agriculture in that county; which report shall be made out in accordance with the rules and regulations of the state board of agriculture, and shall be forwarded to the state board at their annual meeting. [Id. § 12.]

SEC. 12. See note at beginning of article. Upon an application for a mandamus to compel payment by the county under this section it should appear that there are funds in the treasury from which payment can be made. 10 Neb. 19.

SEC. 15. [Fair grounds. Each county society may purchase and hold in fee simple such real estate as they may deem necessary, not exceeding 160 acres of land, for the purpose of holding county fairs. [Id. § 13.]

SEC. 16. [County aid.-Whenever any county agricultural society, organized by law, shall have procured in fee simple, free from encumbrance, land for fair grounds not less than ten acres in extent, the county board of said county may, in their discretion, if the finances of the county will admit, appropriate and pay to such society a sum not exceeding one hundred dollars for every thousand inhabitants in said county, to be expended by such society in fitting up such fair grounds, but for no other purpose; but not more than one thousand dollars shall in the aggregate be appropriated in any one county. [Id. § 14.]

SEC. 17. Report to county board-Dissolution of the society.1Each society receiving such appropriation shall, through its secretary, make to the county board a detailed statement, with vouchers showing the legal disbursement of all the moneys received. And in all cases, when such county agricultural societies shall be dissolved, or neglect, for the space of two years, to discharge the duties devolving upon them by law, or cease to exist, in any county where payments have been made for real estate, or improvements upon such real estate for the use of any agricultural society, then all such real estate and improvements shall vest in fee simple in the county making such payment, and the district court of said county, upon proof thereof, shall, upon petition of said county board, make a proper decree vesting the title to such property in said county. [Id. § 15.1

FAIRS.

SEC. 18. [No liquor selling, games of chance or horse-racing.]— No person shall be permitted to sell intoxicating liquors, wine or beer, of any kind, or be engaged in any gambling, or other game of chance or horse-racing, either inside the enclosure where any state, district or county agricultural society fair is being held, or within forty rods thereof, during the time of holding such fair; and any person found guilty of any of the offenses herein enumerated, shall be fined in a sum not less than five nor more than fifty dollars for every such offense: Provided, That trials of speed of horses under direction of the society shall not be included in the term horse-racing: Provided, also, That upon filing proof with the state treasurer of a violation of this section inside the enclosure of any such fair, the amount of money appropriated shall be withheld for the current year, except, if paid, then it shall be withheld from any money appropriated for the ensuing year. [Id. § 16.]

SEC. 19. [Selling fruit and vegetables.]-The president of any state or county agricultural society, may grant a written permit to such persons as he may deem necessary to sell fruit, provisions, and other necessaries to such persons as may be in attendance at any such fair, under such regulations and restrictions as the board of directors may prescribe. [Id. § 17.]

SEC. 20. [Arrest of offenders.]The president of any such society, marshal, or any police officer appointed by the board, shall be empowered to arrest, or cause to be arrested, any person or persons engaged in violating any of the provisions contained in section 16* of this chapter, and cause them forthwith to be taken before some justice of the peace, there to be dealt with as provided for in said section; and they may seize, or cause to be seized, all intoxicating liquors, wine or beer, of any kind, with the vessels containing the same, and all tools or other implements used in any gambling, or other game of chance, and may remove, or cause to be removed, all shows, swings, booths, tents, carriages, wagons, vessels, boats, or any other nuisance that may obstruct, or cause to be obstructed, by collecting persons around or otherwise, any thoroughfare leading to the enclosure in which such agricultural fair is being held; and any person owning or occupying any of the causes of obstruction herein specified, who may refuse or fail to remove

*SEC. 16 of the original act. Sec. 18 this chapter.

D

such obstruction or nuisance, when ordered to do so by the president of such society, shall be liable to a fine of not less than five and not more than twenty dollars for every such offense. [Id. § 18.]

* ARTICLE II.-FENCES."

SECTION 1. [Live fences.]-Whenever any owner or owners, occupier or occupiers of any lands bordering upon any public road or highway, except a street. or alley in a town, may wish to plant and cultivate any hedge or live fence, along the margin of his, her or their land, it shall be lawful for any such person or persons to set and plant any such hedge or live fence, precisely on the line of the road or public highway, and also to place on the margin of such road a protection fence, not to occupy more than six feet of the margin or edge of said road, and such protection fence, when placed opposite any live fence or hedge, actually set and planted, shall be permitted by the county commissioners, and all other persons, to remain for the term of seven years: Provided, That the county commissioners may grant permission in writing to the owner or owners of any live fence or hedge to continue such protection fence any term of time which they may deem necessary. [R. S. § 12, 7. G. S. § 17, 79.]

SEC. 2. Adjoining occupants.-When two or more persons shall have lands adjoining, each of them shall make and maintain a just proportion of the division fence between them, except the owner of either of the adjoining lands shall choose to let his lands lie open. [R. S. § 13, 8. G. S. § 18, 80.]

SEC. 3. [Proportion of value to be paid.]-When any person shall have chosen to let his lands lie open, if he shall afterwards enclose the same, or if the owner of lands adjoining upon the enclosure of another, shall enclose the same upon the enclosure of another, he shall pay to the owner of the adjoining lands a just proportion of the value, at the time, of any division fence that shall have been made by such adjoining owner, or he shall immediately build his proportion of such division fence. [R. S. § 14. G. S. § 19.]

SEC. 4. [Value, how determined.]-The value of such fence, and the proportion thereof to be paid by such person, and the proportion of the division fence to be made and maintained by him in case of his enclosing his land, shall be determined by any two fence viewers of the precinct, in the county. [R. S. § 15. G. S. § 20.]

SEC. 5. [Disputes, how settled.]-If disputes arise between the owners. of adjoining lands, concerning the proportion of fence to be made or maintained by either of them, such dispute shall be settled by the fence viewers of the county; and in such case it shall be the duty of the fence viewers to distinctly mark and define the proportion of the fence to be made or maintained by each. R. S. § 16. G. S. § 21.1

SEC. 6. [Selection of fence viewers.]-When any of the above mentioned. matters shall be submitted to fence viewers, each party shall choose one, and if either neglect, after eight day's notice to make such choice, the other party may select both. [R. S. § 17. G. S. § 22.]

SEC. 7. [Proceedings.]-The two fence viewers so chosen, shall examine the premises and hear the allegations of the parties; in case of their disagreement. they shall select another fence viewer to act with them, and the decision of any two of them shall be final upon the parties to such disputes, and upon all parties holding under them. [R. S. § 18. G. S. § 23.]

SEC. 8. [Decision.]-The decision of the fence viewers shall be reduced to writing, shall contain a description of the fence, and of the proportion to be maintained by each, and their decision upon any of the points in dispute between the parties, submitted to them as aforesaid, and shall be forthwith filed in the office of the county clerk. [R. S. § 19. G. S. § 24.]

SEC. 9. [Damages.]-If any person who is liable to contribute to the

*NOTE. This article embraces: 1. Sections 12-28, 30-33,

chapter I, R. S. 1866. [G. S. §§ 17-38, chapter 2. 2. An act to define a lawful fence and for other purposes. 1867, 12th Sess. Ter. 17.

erection or reparation of a division fence, shall neglect or refuse, for the period of four weeks after notice in writing so to do, to make and maintain his proportion of such fence, the party injured may make or repair the same at the expense of the party so neglecting or refusing, to be recovered from him with cost of suit; and the party so neglecting or refusing, after notice in writing, shall be liable to the party injured for all damages which thereby accrue, to be determined by any two fence viewers selected as above provided, and the fence viewers shall reduce their appraisement of damage to writing and sign the same. $20. G. S. § 25.]

[R. S.

SEC. 10. [Removal of division fence.]-If any person who shall have made his proportion of division fence, shall be disposed to remove his fence and suffer, his land to lie open, after having first given the adjoining owner at least sixty days previous notice in writing of his intention so to do, he may at any time between the first day of December in any year and the first day of April following, but at no other time, remove the same. [R. S. § 21. G. S. § 26.]

SEC. 11. [Removal-Damages.]-If any such fence shall be removed without such notice, the party removing the same shall pay to the party injured all such damages as he may thereby sustain, to be recovered with cost of suit. [R. S. § 22. G. S. § 27.]

SEC. 12. [Construction of fence.]-Whenever a division fence shall be injured or destroyed by fire, floods or other casualty, the person bound to make and repair such fence, or any part thereof, shall make or repair the same or his just proportion thereof, within ten days after he shall be thereto required by any person interested therein, such requisition to be in writing and signed by the party making the same. [R. S. § 23. G. S. § 28.]

SEC. 13. [Party injured may make fence.]—If such person shall neglect or refuse to make or repair his proportion of such fence for the period of ten days after such request, the party injured may make or repair the same at the expense of the party so refusing or neglecting, to be recovered with cost of suit. [R. S. § 24. G. S. § 29.]

SEC. 14. [Witnesses.]-Fence viewers may examine witnesses on any and all questions submitted to them, and either of such fence viewers shall have power to issue subpoenas for and administer oath to such witnesses. [R. S. § 25. G. S. § 30.]

SEC. 15. [Fence viewers.]—In all organized counties, justices of the peace shall be ex-officio fence viewers of the county. [R. S. § 26, 10. G. S. § 31, 81.]

SEO. 16. [Fees of fence viewers.]-Fence viewers shall be entitled to one dollar per day each for the time necessarily spent as above provided to be paid in the first instance, by the party requiring the service; and all expenses of the view shall be borne equally between the parties, except in case of view to appraise damages for neglect or refusal to make or maintain a just proportion of the division fence, in which case the cost of view shall be paid by the party in default, and may be recovered as a part of the damage assessed. [R. S. § 27, 10. G. S. § 32, 81.]

SEC. 17. [Damages.]-Damage accruing to any person or persons, under the provisions of this chapter, may be recovered in a civil action, in any court of this state. [R. S. § 28. G. S. § 33.1

SEC. 18. [Lawful fence defined.]-Such structures as shall be used for a fence, to inclose lands, shall be as follows:

I. A rail fence shall consist of at least six rails, said rails to be secured by stakes at the end of each panel, well set in the ground, with a rider said upon stakes. A board fence shall consist of not less than three boards of at least five inches in width and one inch thick, said boards to be well secured to posts, the posts to be not more than eight feet apart. A rail and post fence shall consist of at least three rails, well secured at each end to posts, and posts to be not more than ten feet apart. A pole and post fence shall consist of not less than four poles, to be well secured to posts, said posts to be not more than seven feet

#

apart. A wire fence shall consist of at least four wires, of a size not less than number nine fencing wire, to be well secured to posts, said posts to be at no greater distance than one rod from each other; and there shall be placed between every two of said posts, one stake or post to which the wire shall be attached.

II. The fences described in the preceding section shall be at least four and one-half feet in height and in the construction of said fences the spaces between the boards, rails, poles, and wires herein provided for, shall not exceed one foot each, measuring from the top.

III. A hedge fence of osage orange shall consist of at least one row of plants, said plants not to be more than eight inches apart at the surface on the ground, and said hedge shall be such as fence viewers shall decide a lawful fence. A hedge fence of willow or other trees used for that purpose, shall consist of at least one row of such trees standing not more than fifteen inches apart at the surface of the ground, and at least two and one-half inches in diameter, and at least six feet in height.

IV. Fence known as "Warner's Patent" shall be at least four and a half feet in height, and consist of not less than five boards, said boards to be at least five inches wide, and one inch thick. [12 Sess. Ter. 1867, p. 17. G. S. § 34, 82.]

SEC. 19. [Damages by animals.]--If any domestic animal break into any enclosure, the person injured thereby shall recover the amount of damage done, if it shall appear that the fence through which said animal broke was a lawful fence. [R. S. § 30, 10. G. S. § 35, 82.]

SEC. 20. [Tender-Costs.]-If before trial the owner of such trespassing animals shall have tendered to the person injured, an amount, in lieu of damage and costs which may have accrued, which shall equal the amount of damage afterward awarded by the court or by the jury, or shall offer in writing to confess judgment for the same, and if notwithstanding, the said injured person refusing said offer, cause the trial to proceed, he shall pay costs, and recover only the damage awarded. [R. S. § 31. G. S. § 36.]

SEC. 21. [Planting crop on land not enclosed.]-If any person sow any grain, or plant any crop, without inclosing the same with a sufficient fence, as above provided, he shall be liable for all damages that any person or persons may sustain in consequence of such neglect to inclose the same. [R. S. § 32. G. S. § 37.]

SEC. 22. [Article not applicable, when.]-This subdivision shall not extend to or in any wise affect any county in this state, in which horses, mules, cattle, sheep or swine, are restrained from running at large by reason of legislative enactment. [R. S. § 33. G. S. § 38.]

SEC. 1. [Owners of stock liable for damages.]—That the owners of cattle, horses, mules, swine, and sheep in this state, shall hereafter be liable for all damage done by such stock upon the cultivated lands in this state as herein provided by this act. [1871 § 1, 120. G. S. 83.]

SEC. 2. [Damage-A lien on stock.]-That all damage to property so committed by such stock running at large, shall be paid by the owners of said

SEC. 18. This section is inserted in place of the original section 29, R. S., p. 10, the same taking effect May 1. 1867, and evidently repealing the original section by implication, which was as follows: "SEC. 29. Any structure or hedge or ditch in the nature of a fence used for purposes of enclosure, which is such as good husbandmen generally keep, shall be deemed a lawful fence."

*NOTE. This article embraces: 1. "An act for a general herd law to protect cultivated lands from trespass by stock." Laws 1871, 120. [G. S. 83-86.] It repealed prior laws upon the subject and applying to particular localities. Certain special acts (Laws 1871, 211,-Special laws 1873,-Laws 1875, 293, -"An act to allow cattle, horses, sheep and hogs to run at large on McKissick's Island, in Nemaha county," approved Feb. 28, 1881), are omitted from this volume. 2. "Acts amendatory of the herd law." [1875, 186. 1877, 62.] 3. "An act to restrain sheep and swine from running at large." Laws 1875, 190. 4. "An act to prevent damage by certain domestic animals during the night time in the state of Nebraska, in organized counties where no herd law is in force." Laws 1879, 165.

SEC. 1. Construing this and other similar laws it has been held that owner of stock is not liable for trespass by them on uncultivated, uninclosed land. 10 Neb. 492. But see section 8, p. 51, as amended since this decision was rendered.