The common law doctrine in relation to partition fences, is, that a tenant of a close is not bound to fence against an adjoining close, unless by force of prescription (Churchhill v. Evans, 1 Taunt. 529; 4 Met. 589) ; and where no prescription or agreement exists, the legal obligation of the tenants of adjoining lands to make and maintain partition fences depends entirely upon statutory provisions. Our statute (Clay’s Digest 241 § 4) provides, c£ that where any neighbors shall improve lands adjacent to each other, or where any person shall enclose any land adjoining another’s land already fenced in, so that any part of the first person’s fence becomes the partition fence between them, the charge of such division fence, so far as enclosed on both sides, shall be equally borne and maintained by both parties.” It was not, however, the intention of the Legislature, to restrict the right of the tenant to let his own land lie open ; he being responsible in damages for bis cattle breaking into any grounds enclosed with a lawful fence. — Clay’s Dig. 241 § 1.
One of the requisites necessary, in order for the plaintiff be*314low to maintain his action, was, that the land of the defendant should have been enclosed ; and although the fact that some pannels of the outside fence were down, so that stock could enter, might not have been conclusive upon that question, it was nevertheless evidence to be taken into consideration by the jury in ascertaining that fact. The qualification to the first charge was, in this aspect, erroneous, as it asserted the proposition that the fence being down in two or three places was, in itself, no evidence that the lot was not enclosed. This was invading the province of the jury, whose duty it was to determine upon the weight to be attached to evidence of this character.
The qualification to the second charge, also, in our opinion, laid down the law too broadly. Bibb’s possession must either have been under a claim of right in himself or a third person, under the defendant, or as a trespasser. Now, if the charge regarded him as a trespasser, which wTe suppose from the language employed it did, it is very clear that the actual owner could not be made liable for the erection or repairs of the fence; for the reason, that, had he been in possession, he might have left the lot open and exposed. The same reasons would apply, if Bibb was holding under a claim of right in himself or a third person. The record does not show that he held under the defendant, Moore, and we do not, therefore, consider the case in that aspect. If, however, as owner, he consented to the erection or repairs of the fence, and the other party made them upon the consent thus given, it would be a clear case of estoppel in jmís, and of course he would be liable.
In the refusal to give the last charge there was no error. To entitle the plaintiff to recover, as we have already said, the requisitions of the statute must be pursued, and the actual interest which the parties have in the partition fence, is a question which cannot arise in an action of this nature.
The judgment is reversed, and the cause remanded,