It seems to be conceded in the briefs of counsel that on the trial the attention of the learned judge was not called to ch. 138 and ch. 307, Laws of 1880.
Ch. 138, imposes the obligation to maintain a line fence upon.the owner of land used for farming purposes, whether inclosed or not, amending in that respect sec. 1391, R. S. Ch. 307, Laws of 1880, provides that “ owners of lands who do not maintain and keep in repair lawful partition fences *480shall not be entitled to recover any damages whatever for trespasses by the animals of owners of any adjoining lands with whom partition fences might have been maintained if such lands had been inclosed.” Probably ch. 307 would defeat this action had not ch. 138 been enacted. If the plaintiff’s pasture and meadow were not inclosed, under the provisions in force before the enactment of ch. 138 he could not have been compelled to maintain the line fence in question. Tet, in respect to trespasses committed by defendant’s horses, ch. 307 would seem to place him in the same position as though the statute required him to maintain a line fence. But, however that may be, the two chapters of the Laws of 1880 are absolutely fatal to the plaintiff’s alleged cause of action, for it is undisputed that he did not maintain and keep in repair a lawful partition fence. The case was tried upon an erroneous theory, and the exceptions are sufficiently broad to reach it. The motion for a nonsuit should have been granted. That having been denied, a new trial should have been granted unconditionally.
By the Court.— The portion of the order from which the appeal is taken is reversed.