Page:Federal Reporter, 1st Series, Volume 4.djvu/882

 868 FEDERAL REPORTBB. �caltle-guards for the protection of Mrs. WarS's cropa, There are courts, however, that hold that fence ia'ws impose the sataie obligation on tailroads as other adjoining proprietors; and perhaps, where the company owns the land, and does not pqssess, as in this case, a mere right of way over land belong- ing to the original proprietor, there may be sound reason in saying that they are liable to the same laws that govern ad- joining proprietors of land, and that the uses to which it is put cannot alter the case, though the Tennessee cases before cited, as to partition fences in towns, seem to indicate a dif- ferent view. 1 Eedf. Ey. 486, 499. I have considered thia case in that aspect, and, if these statutes do bind the com- pany, it should be determined what are the rights of the parties on the facts of this case. �We have seen that at common law there is no obligation on adjoining proprietors to fence their lands, and certainly none to fence for each others' benefit. Neither the Code, nor the subsequent acts amendîng it, are compulsory in any other sense than that a farmer, vrlio fails to build a legal fence, is deprived of any right of action against the owners of straying cattle trespassing on his lands. T. & S. Code, 1682-1693, Acts 1877, c. 35. Adjoining proprietors are at liberty, if they see fit, to dispense with fences altogether, Aylesworth v. Herrington, 17 Mich. 417, 424; Tewkshury v. Bucklen, 7 N. H. 518. If ail that is claimed for the opera- tion of the fence laws be admitted, it only amounts to this : that the petitioner here would be exempt from liability to the railroad for any trespass her animais should commit in straying on its lands, because the company bas not fenced them, as the law requires. If the petitioner had made par- tition fences, under the circumstances mentioned in the stat- utes, the adjoining land owner might be compelled to pay his part of the cost and repairs. T. & S. Code, 1687. �But there is nothing in the Gode to compel an adjoining owner to make either partition or other fences for the benefit of his neighbor. The company was not, therefore, bound to construct a fence or cattle-guard, or to maiutain it. If one construct a fence upon his own land, he may remove it at ����