"A Digest of the Statutory and Constitutional Constructions, Delivered in the Supreme Court and Court of Errors and Appeals of the State of New Jersey"
Archer Gifford
1852


1840
ROBBINS, JOHNSON, dec’d, administrator to convey a farm
and tract of pine land,                                        21   64 ses. 2 sit.

1842
ROBBINS, Elijah, dec’d, Guardians of heirs of, to sell lands, 143

1793
GARRISON, Elizabeth, widow of Daniel Miller, - - 896
Treasurer to pay her £41 5a., being half-pay of her husband.

1834
COOL, Wm., dec’d, Trustee to sell lands of,                    36


Cox: vs. Robbins, 4 Hal. 884, 5, 7, 9.—Act 23 Jan‘y, 1799, § 1, 2, 3, 4 and 10.—R. L
887.-—R. S. 473, 5 1, 2, s, 4 and 10.
The 1st section of this statute describes a lawful fence, both outside and for parti-
tion ; the 2d section provides, that where lands, marshes, &c. of any two persons join,
each shall make or amend, &c., a just proportion of the division fence, except such per-
sons as chose to let their lands lie vacant; and if any person neglect, on notice, to
make or amend his part, the other party may make, &c., and recover half the expense.
By the 3d section, to avoid dificulty as to the place of a partition fence, if parties can
not agree, two of the Township Committee may fix the same.
By the 4th section, where a partition fence shall be equally divided, each party shall
take an equal share to make, &c.; and if they cannot agree in making a division, two
of the Township Committee are to determine the part of each.
By the 10th section, if any person, to whom any part of any partition fence may be
assigned to make, &c., shall neglect, after notice, so that his own or the beasts of
another shall enter upon his neighbor's land, over or through mid fence, he is liable
to make good all damages. And if the beasts of the person who has made, &c., his
part or share of the partition fence assigned to him, or the beasts of any other person
should tresspass on his next adjoining neighbor, through that part of the fence, so by
him neglected, &c., he shall not be liable to have his beasts impounded, nor be liable
to an action for damages.

Where parties were owners or occupants of adjoining closes of improved land, and
defendant having mowed his close of meadow land, turned his cattle on it, (there
being no evidence that the fence had ever been divided, or the portion to be kept up
by each sustained,) they passed into the close of plaintilf, occasioned the injury, for
which an action of tresspass, quare clansum fregit, was brought before a Justice, and
judgment given for plaintiff.
On certiorari brought-

Per Cur., Ewing, C. J.-—By common law the owner of a close
is not obliged to fence against cattle of an occupant of an adjoin-
ing close. From an examination of this statute, it clearly ap-
pears that the regulations it contains respecting the liability to
answer in damages in some cases and in others for protection
and immunity from an action of trespass, extends only to owners
of adjoining closes, between whom a division of the partition
fence has been made, and the part or share to be maintained by
each has been ascertained by either a voluntary agreement
between them or an assignment of the Township Committee.
When no such division has been made—when the part and share
of each remains undefined, the salutary regulation designed to be
introduced by the statute has not been called into action, the
statute is silent, the common law prevails.

In this case there was no evidence that the fence had ever been
divided or the portion to be kept up by each in any way ascer-
tained. Neither then can claim for himself the protection con-
templated by the statute.
Drake, J .—The Legislature intended to oblige every possessor
of lands to see that his lands be enclosed by a lawful fence, and
to make it indispensable to the maintaining an action, except in
such cases as after ascertaining according to law and making his
own part of a partition fence, he may choose to leave the other
part unmade, and look to the adjoining owner for the payment of
all damages to be sustained by trespasses of his own cattle or of
those of third persons, which may be enforced by action or by
impounding if the cattle be his.
Judgment aflirmed.