Page:Federal Reporter, 1st Series, Volume 4.djvu/883

 ■WARD V. P. & ir. B. 00. 69d �will. If, however, liis neighbor bas, with his consent, j'oînea bis fence to it, and its removal would expose the neighbor's' crops, he should give notice and allow time for protectioû before removal ; but this imposes no obligation to keep up the fence, or any liability for failure to do so. Neither the Code, nor the act of 1877, c, 35, makes an adjoining land owner responsible in damages for a failure to keep up his ahare of the partition fence, nor makes ariy apportionment of the fence for each to keep up, from which this liability for failure to repair could be implied. The other owner may erect and repair and collect the cost. Under a similar statuts in Ala- bama, from which ours is largely copied, it was held he had a right of entry to make repairs. Henry v,' Jones, 28 Ala. 385. Hence, there is no other liability, under these statutes, than for a share of the costs of repairs. The statutes in some of the states proceed upon the other plan, and assign certain portions of the fence to each owner, and he becomes liable in damages for failure to repair, but our Code do es not. �We corne now to the act of 1875, c. 64, p. 75, the first sec- tion of which enacts, among other things, that "if either of the parties, having a joint or partition fence, refuse or neglect to keep up his part of said fence in good repair, he shall be lia- ble for ail damages the other may sustain to his euclosures or crops by trespassing stock in consequence of such refusai or neglect." The second section enacts that "where there is no partition fence between the owners of any lands in this state, and said lands being in one general enclosure, then each party shall be liable to the other for any trespass or damages upon or to his land or crop thereon caused by the neglect or failure of said other party to protect the said enclosure or crop on his or their side of said general enclosure." �This case does not fall within the first section at ail, because this is not a partition fence, (the cattle-guard,) which is defined by statute to mean "fences on the Une between lands owned by different persons." T. & S. Code, 1691. No provision ia made for designating by assignment of fence viewers or other- wise, as is usual iix statutes proceeding on this principle of compensation in damages, (for the first time in this state ����