and suffer his lands to lie open, after having first given the adjoining owner one year's notice, in writing, of his intention so to do, he may, at any time thereafter, remove the same, unless such adjoining owner shall previously cause the value of said fence to be ascertained by fence viewers, selected as herein before provided, and pay or tender the same to such person. (1.) [L. 1857, p.160, § 9.

15. Removal without notice.] § 15. 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 costs of suit. (2) [L. 1857, p. 160, § 10.

16. Mistake in locating fence.] $16. When a person has made a fence on an inclosure which afterwards on making division lines is found to be on the land of another, and the same has occurred through mistake, such first person may enter on the land of the other and remove his fence and material within six months after such line has been run. (3) [R. S. 1845, p. 281, § 19.

17. When removal may not be made. § 17. But such fence shall not be removed if it was made of material taken from the land on which it is built, until the party pays or tenders to the

(1) Form of Notice by Adjoining Owner of his Intention to Remove his Share of Partition Fence.

To H. H.:

Sir: You will take notice that I intend to remove my portion of the division fence on the line of our adjoing lands [describe the location of the fence with reasonable certainty], that my said lands may hereafter lie open, and that I shall remove the same after the expiration of one year from the date of your receiving this notice.

Dated this day of, A. D. 18—.

J. G.

If an existing fence is a partition fence by agreement, by acquiescense or under the statute, it cannot be removed by either owner or occupier until the other has sufficient notice. McCormick v. Tate, 20 Ill. R., 334.

Where a party removes a partition fence wrongfully, and his stock enters upon another's premises, he will be liable. Stoner et al. v. Shugart, Jr., 45 ill. R., 77.

One who sows his crop after the fence has been taken down, which protects one side of his land, cannot recover damages of the wrong doer, for injury to his crop, by the entry of cattle on it. He was bound to use reasonable prudence in planting his crop. Hassa v. Junger, 15 Wis. R., 598.

Proprietors of adjoining lands are not under legal obligation to perpetually maintain division fences with each other. It is a matter of convenience between the parties, which either may at his pleasure terminate by giving the statutory notice. Hoag v. Switzer et al 61 Ill. R.. 294.

(2) Where a party removes a division fence without having previously given the required notice, the party injured thereby is not limited to a suit for the recovery of actual damages sustained in consequence of such removal, but may make the fence anew and recover the expense thereof by action.

If actual damages are sustained, as the loss of a crop for instance, caused by the removal of the fence, an action for the recovery of such damages, as well as a suit to recover the expense of making the fence may be sustained. Richardson v. McDougall, 11 Wend. R., 46.

(3) The law giving the right to remove fences made by mistake upon the lands of other persons, applies only to natural persons; it has no relation to a case where a fence is erected by mistake upon the lands of the United States or of this State. Blair v. Worley, 1 Scam. R., 179.

owner of the land the value of such material, to be ascertained by the fence viewers; nor shall a fence be removed at a time when the removal will throw open or expose the crops of the other party, but it shall be removed within a reasonable time after the crops are secured, although the six months above specified have passed.

18. Viewers may examine witnesses, etc.] § 18. 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 oaths to such witnesses. (1) [L. 1857, p. 160, § 13.

19. Fees.] § 19. Fence viewers shall be entitled to one dollar and fifty cents per day, each, for the time necessarily spent as above provided, to be paid in the first instance by the party requiring the services; 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 a division fence, in which case the costs of view shall be paid by the party in default, and may be recovered as part of the damages assessed. (2) [L. 1857, p. 160, § 15.

20. Trespass-Damages.] § 20. If any horse, mule or ass, or any neat cattle, hogs or sheep, or other domestic animals, shall break into any person's inclosure, the fence being good and sufficient, the owner of such animal or animals shall be liable, in an action of trespass, to make good all damages to the owner or occupier of the inclosure. This section shall not be construed to require such fence, in order to maintain an action for injuries done by animals running at large contrary to law. (3) [R. S. 1845, p. 281, § 15.

(1) Form of Subpæna for Witness by Fence Viewers.

State of Minois, }

SS.
County,

The People of the State of Illinois to [name of witness]:

You are hereby commanded to appear before L. M. and R. S., fence viewers of the town of - in said county, at [state the place], on the day of 18-, at o'clock, M., to testify and the truth to speak in a matter' pending before said fence viewers, between A. B. and C. D., concerning [state briefly the matter in controversy]. In witness whereof the said fence viewers have hereunto set their hands this day of ———, 18—.

Fence

L. M., Viewers.

R. S.

(2) In an action of assumpsit by a land owner against his neighbor, to recover the latter's portion of money paid to fence viewers, held, that, to support the action, it must appear that the division had been made on the representation of one or both the parties; that one of them had refused to pay the part awarded him to pay, and that the division had been made on the true line between them. Gallup v. Mulvah, 24 N. Hamp. R. (4 Fost.), 204.

(3) In order to maintain an action for the trespass of stock upon one's inclosure, whereby damage is sustained, the owner of the inclosure must have maintained a good

21. Damages feasant-Rescue.] § 21. If any such animal or animals shall break into an inclosure surrounded by a fence of the height and sufficiency prescribed by this act, or shall be wrongfully upon the premises of another, the owner or occupier of such inclosure or premises may take into possession such animal or animals trespassing, and keep the same until damages, with reasonable charges for keeping and feeding, and all costs of suit be paid, to be recovered in any court of competent jurisdiction; and any person who shall take or rescue any such animal so taken up from the possession of the taker-up without his consent, shall be liable to a fine of not less than three nor more than five dollars for each of such animals so rescued, to be recovered on complaint before any justice of the peace of the county where such offense shall be committed, for the use of the school fund of the proper county: Provided, that within twenty-four hours after taking such animal into his possession, he shall give notice to the owner thereof, if known, or if unknown, he shall post notices at some public place near the premises.(1)

and sufficient fence about it. Headen v. Rust, 89 Ill. R., 186. This decision is understood to apply only in cases where animals are allowed to run at large.

In an action for trespass, committed by defendant's cattle upon the plaintiff's land, the defence was, that the cattle entered from the adjoining field of the defendant, through the plaintiff's insufficient fence. Held, that the plaintiff might show that such cattle were unruly, which would repel the defence. Barnum v. Van Dusen, 16 Conn. R., 200.

Where it appeared that the injury complained of in an action of trespass for damages done to the plaintiff's land by defendant's cattle, resulted from the want of a sufficient fence between the adjoining lands of the plaintiff and defendant, that it was the duty of each of the owners of these lands to make and maintain one-half of the divisional fence, and that the plaintiff had never made his part, or taken any measures toward it. Held, that the plaintiff was not entitled to a recovery. Studwell v. Rich, 14 Conn. R. 292.

Where A's sheep escaped from his land into B's land, through the insufficiency of a fence which B. was bound to repair, and thence passed into another adjoining lot of B. which was surrounded by a sufficient fence, and committed damage, Held, that B. could not maintain trespass therefor against A. Page v. Olcott, 13 N. Hamp. R., 399.

Where stock break through defendant's portion of a division fence which is defective, plaintiff can recover although his portion of the fence may also be out of repair. Ozburn v. Adams, 70 Ill. R., 291.

What is a good and sufficient fence is a question for the jury to determine from the evidence.

An action for the trespass of cattle may be maintained if the fence is good and sufficient, whatever may be its height. Scott v. Wirshing, 64 Ill. R., 102.

No one is obliged to fence against animals fere naturae, (wild by nature,) but the owner of such animals must keep them at his peril, and he is liable for damages done by them on another's land whether fenced or not. Canefox v. Crenshaw, 24 Mo. R., 556.

(1) The notice to the owner of animals trespassing on the land of another, where the owner is known, is not required to be in writing. It may be given verbally. The following may be the form of the notice for posting when the owner is unknown, and which may be used when the owner is known if desired to give written notice:

Form of Notice to Owner of Animals Found Trespassing on the Land of Another, to be Posted.

18

To the owner of the animals herein described: You, said owner, are hereby notified that on the day of three certain cows entered wrongfully upon my premises [or as the case may be], in the town of in the county of State of Illinois, and that I then and there took the same into my possession, at my residence at [give place of residence with reasonable certainty], where

FENCING RAILROADS-CROSSINGS.(1)

Part of AN ACT in relation to fencing and operating railroads. [Approved March 31, 1874. In force July 1, 1874.]

SECTION.

1. Fencing track.

1. Right of way clear of combustibles.

2. Allowing, etc., animals on right of way-Breaking fence, etc.

3. Where company neglects to build-Notice.

4. Adjoining owner may build and recover.

5. Roads at crossings.

6. Bell and whistle-Crossings.

6. Killing stock-Frightening team.

7. Starting train without signal.

8. Approaches at crossings.

9.

Neglect to make, etc., crossings-Notice.

10. When company neglects, authorities to construct, etc.

11. Company to pay expenses and $100.

14. Not to obstruct highway.

35. Flagman-Shelter.

36. Penalties.

37. Corporation defend.

38. Street railroads.

1. Fencing track.] § 1. That every railroad corporation, shall, within six months after any part of its line is open for use, erect and thereafter maintain fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad (except at the crossings of public roads and highways, and within the limits of cities and incorporated towns and villages,) with gates or bars, at the farm crossings of such railroad, which farm crossings shall be constructed by such corporation when and where the same may become necessary, for the use of the proprietors of the lands adjoining such railroad; and shall also construct, where the same has not already been done, and thereafter maintain at all road crossings now existing, or hereafter established cattle guards, suitable and sufficient to prevent cattle, horses, sheep, hogs and other stock from getting on such railroad;

they still remain, and are held by virtue of the statute in such cases made and provided. Said cows are described as follows: One a red cow [giving description], one a white cow, [giving description], and the other a black cow [giving discription].

Dated this

day of

18-.

A. B.

Where two persons own land adjoining each other, and join fences, each building the fence on his own land, and have no partition fence between them, and cattle break through the defective fence of one and enter the premises of the other, the latter would have no right to take them up or recover for injuries against the owner of the stock. Stoner et al. v. Shugart, Jr., 45 Ill. R., 77. See Buckmaster v. Cool, 12 Ill. R., 76, and McCormick v. Tate, 20 III. R., 334.

(1) So much of the above act only is inserted here as seems to have any connection with affairs under township organization, or duties of town officers. That portion which relates to public roads and highways concerns the commissioners of highways of the town.

and when such fences or cattle guards are not made as aforesaid, or when such fences or cattle guards are not kept in good repair, such railroad corporations shall be liable for all damages which may be done by the agents, engines or cars of such corporation, to such cattle, horses, sheep, hogs or other stock thereon; but when such fences and guards have been duly made and kept in good repair, such railroad corporation shall not be liable for any such damages, unless negligently or willfully done.(1) [L. 1855, p. 173, § 1. [As amended by act, approved May 23, 1877.

(1) The law prohibiting domestic animals from running at large, in force October 1, 1872, does not by implication repeal or nullify any of the provisions of the act requiring railroad companies to fence their roads, and the same is true with regard to the law preventing male animals from running at large. R. R. I. & St. Louis R. R. Co. v. Irish, 72 Ill. R., 404.

The obligation of a railroad company to fence its line of road does not attach until it has been in operation six months, and where the company has not been in operation six months, but had constructed a fence, it is under no obligation to keep it in repair, the duty not having attached. Toledo, Peoria & Warsaw R. R. Co. v. Miller, 45 Ill. R., 42. The companies are liable, under the statute, if they fail to fence within six month after they begin to run trains on the track for construction purposes. R. R. & St. L. R. R. Co. v. Heflin, 65 Ill. Ř, 366.

Where a railroad company fails to fence its track, as required by the statute, it must see that its servants so conduct its trains that injury shall not result to stock that may get upon its track, if it can be avoided by care and caution. In failing to fence, it takes the hazard, and when injury results therefrom, it must be required to respond in damages. Toledo, Peoria & Warsaw R. R. Co. v. Levery, 71 Ill. R., 522.

Where a railroad company, whose road has not been in operation six months and is not fenced, its only ground of liability for injury to stock will be that the injury might have been avoided by the exercise of ordinary care and prudence, and its servants in charge failed to exercise such care and prudence. The Gilman, Clinton & S. R. Co. v. Spencer, 76 I. R., 192.

Where a railroad company fails to fence its track as required by law, or has erected an insufficient fence, or failed to maintain a fence, it is liable for all damages resulting from such omissions of duty, and this without any reference to the manner in which its engines may have been controlled. St. Louis, Alton & Terre Haute R. R. Co. v. Linder et al., 49 Ill. R., 433; Same v. Todd, 36 Ill. R., 409.

The question of the obligation of a railroad company to fence their road at a particular place is one of law, not of fact, and should not be left to a jury to decide. Illinois Central R. R. Co. v. Whalen, 42 Ill. R., 396.

In cases where a railroad company are not bound to fence their road, or where others are equally bound to fence, they are nevertheless bound to use ordinary care in running their trains to prevent the injuring of stock. They would be liable for injuries in case of gross negligence in this regard. Headen v. Rust, 39 Ill. R., 186; St. Louis, Alton & Terre Haute R. R. Co. ▼. Linder et al., 39 Ill. R., 433.

Where an accident is attributable to a defective fence, which it was the duty of the company to provide, if the company has failed to erect a suitable fence, negligence is inferred; but where they have performed this duty, then negligence must be proved as in ordinary cases. Illinois Central R. R. Co. v. Whalen, 42 III. R., 396.

The necessity of fencing a railroad at a given point is not obviated by there being an embankment at that place from twelve to twenty feet in height, it not appearing that the embankment was sufficient to prevent stock from getting upon the track. Toledo, Peoria & Warsaw R. R. Co. v. Sweeney, 41 Ill. R., 226.

A railroad company are not required to fence their track upon their depot grounds in a town. G. & C. U. R. R. Co. v. Griffin, 31 Ill. R., 303.

A railroad company is not bound to fence its track or make cattle guards within the limits of a village, and a place where there is a station house, a warehouse, a store, a blacksmith shop, a post office, and five or six dwelling houses, comes fully up to the requirements of a village for the purpose of excusing a railroad company from fencing its track within the limits thereof. Toledo, W. W. R'y Co. v. Spangler, 71 Ill. R., 568.

Railroad companies are not required by the statute to fence their line of road within the corporate limits of a town, and in actions against them to recover for injuries to stock, occurring within such limits, it is error to refuse so to instruct the jury. Chicago & Alton R. R. Co. v. Engle, 58 Ill. R., 381. But if railroad companies construct cattle guards within the limits of towns, they should keep them in repair. C. & R. I. R. R. Co. v. Reid, 24 Ill. R., 144.

The necessity for a fence where the contrary is alleged, in case of injury, is shown by proof that the cattle were upon the track. Toledo, Peoria & Warsaw R. R. Co. v. Sweeney, 41 III. R., 226.