HIGHWAY FENCES.
Under the common law, the land owner is under no obligation to fence his land along a public highway. But in Missouri, Iowa, Illinois, Oregon, and some other Western and Southern States, the common law rule has been modified by statutes depriving the land-holder of his action for trespass, unless he maintains sufficient fences around his land. In these States, the owner ofland must enclose it with sufficient fences if he would cultivate it. Even where there is no such statutory provisions, it is practically necessary to maintain highway fences, as a protection against cattle which are driven along the highway. The use of barb wire for fencing along the public roads has given rise to questions for which there were no precedents. A case was decided in the United States Circuit Court, at Watertown, New York, December 17, 1885. The action was brought by a horse breeder to recover damages from his neighbor for injuries sustained by the plaintiff’s horse from a barbed wire fence, stretched along the roadside in front of the defendant’s premises. A non-suit was granted on the ground that the animal received the injuries through the contributory negligence of its owner. Among the rulings of the court was one permitting the plaintiff to be questioned, to show the fact that he had on his own farm a similar fence, but of sharper form of barb. The court further held that it might be a question whether it would not be competent testimony to show the common employment of barb wire fence in that region, and held that for the purpose of this case, a barbed wire fence, if properly constructed upon the highway, must be deemed a legal fence.
It may be said in a general way, that though there is no legal obligation resting on the land-holder to maintain fences along the public highway, he neglects to do so at his own risk and peril.