This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
There is generally, at common law, no obligation upon a landowner to maintain a partition fence between his land and the land adjoining.68 But there may be an easement, created by grant or prescription, in favor of one piece of land, by which the owner of land adjacent thereto is compellable to maintain a partition fence between them.09 Such an easement is sometimes referred to as a "spurious" easement, since a true easement, it is considered, cannot involve a duty of active performance on the part of the owner of the land subject to the easement, the servient tenement. An easement involving a right to the maintenance of a partition fence is to be distinguished from a right to have it maintained by reason of a contract to that effect.70
In many states there are statutes providing for the construction of a partition fence between adjoining pieces of land at the joint expense of the owners or occupants thereof.71 By these statutes, each adjoining owner or occupant is required not only to join in the
245, 44 Am. Dec. 483. But he cannot cut or break into the wall, it not being a party wall. Sim-onds v. Shields, 72 Conn. 141 44 Atl. 29.
67. Post, Sec. 361, notes 37-52, Sec. 393.
67a. Post, Sec. 365, notes 11-21.
68. Star v. Rookesby, 1 Salk. 323; Moore v. Levert, 24 Ala. 310; Rust v. Low, 6 Mass. 90. And see ante, Sec. 298.
69. Star v. Rookesby, 1 Salk. 335; Lawrence v. Jenkins, L. R. 8 Q. B. 274; Bronson v. Coffin, 108 Mass. 175, 118 Mass. 15G;
Castner v. Riegel, 54 N. J. Law, 498, 24 Atl. 484; Adams v. Van Alstyne, 25 N. Y. 232.
70. D'arcy v. Miller, 86 111. 102, 29 Am. Rep. 11; Bruner v. Palmer, 108 Ind. 397; Lawton v. Fitchburg R. Co., 8 Cush. (Mass.) 230, 45 Am. Dec. 753; O'riley v. Diss, 41 Mo. App. 184; Harriman v. Park, 55 N. H. 471; Scott v. Grover, 56 Vt. 499, 48 Am. Rep. 814.
71. 1 Stimson's Am. St. law, Sec. 2182; 12 Am. & Bng. Enc, Law, 1050 et seq., Ante, Sec. 298.
When one owner of land desires to compel contribution by an adjacent owner of part of the cost of a partition fence under the statute, and the latter refuses to make contribution, the former is usually expressly authorized to apply to local officers, called "fence viewers," for a determination of the proportions to be built and maintained by each, or, in case the fence is already erected, for an allowance of the amount to be contributed by the party in default.74 These statutes usually authorize one thus to compel his neighbor to join in the erection and maintenance of the fence only in case the latter's land is improved,75 or occupied,76 or inclosed,77 and sometimes only when the land is used or occupied "otherwise than in common," this meaning land, it is said, which is segregated from other land by inclosure, or by use of an exclusive nature.78
An owner of land who is bound, by grant or prescription, or by reason of proceedings under the
72. 1 Stimson's Am. St. Law, Sec. 2185; Guyer v. Stratton, 29 Conn. 421; Rhodes v. Mummery, 48 Ind. 216; Barrett v. Dolan, 71 Iowa. 94, 32 N. W. 189; Stephens v. Shriver, 25 Pa. St. 78; Carpenter v. Cook, 67 Vt. 102, 30 Atl. 998.
73. 1 Stimson's Am. St. Law, Sec. 2184.
74. 1 Stimson's Am. St. Law, Sec. 2182; Gonzales v. Wasson, 51 Cal. 295; Thompson v. Bulson, 78 111. 277; Farmer v. Young, 86 Iowa. 382, 53 N. W. 279; Briggs v. Haynes, 68 Me. 535; Burr v. Kam-er, 12 Neb. 483, 11 N. W. 741; Bronk v. Becker, 17 Wend. (N.
Y.) 320; Shriver v. Stephens, 20 Pa. St. 138; Farr v. Spain, 67 Wis. 631, 31 N. W. 21.
75. Wiggin v. Baptist Soc, 43 N. H. 260.
76. Maudlin v. Hanscombe, 12 Colo. 204, 20 Pac. 619; Rust v. Low 6 Mass. 90.
77. Kent v. Lix, 47 Mo. App. 567; Boyd v. Lammert, 18 111. App. 632; Boenig v. Hornberg, 24 Minn. 307.
78. Hewit v. Jewell, 59 Iowa. 27, 12 N. W. 738 ; Jones v. Perry, 50 N. H. 134. See Perkins v. Perkins, 44 Barb. (N. Y.) 134.
Statute, to maintain a partition fence, or a. part thereof, is liable to the adjoining proprietor for any damage that may occur owing to his failure properly to maintain it, there being usually an express provision to this effect in statutes providing for partition fences.79 He has no right to recover against the adjoining proprietor for a trespass by the latter's cattle which results from his own failure to comply with his obligation to fence;80 but his obligation is to his adjoining owner only, and to those lawfully using the latter's land, and he may recover against others whose cattle trespass on the adjacent land, and pass therefrom onto his land, although they do so owing to his own failure to fence.81