On rehearing."
Ellison, P. J.— The argument or reasoning of Judge Hall is to sustain a conclusion embodied in three propositions stated by him, viz., first, that “a division fence erected jointly by the adjoining land-owners is not within the statute;” second, that “an agreement between such dwners in relation to the erection of a division fence is not within the statute;” third, that “an agreement as to the partition of a division fence jointly erected and owned by the land-owners is not within the statute.” I am unwilling to concur in the first and third propositions. They involve the holding, and it is, in effect, so stated, that there can be a division fence only where the adjoining owner owns entire an already existing fence and that this fence already in existence, under the entire ownership of one proprietor, *551is a necessary basis out of which can come a division fence under the statute. This view would make it impossible for adjoining proprietors who enclosed at the same time to have a division fence unless one alone built the fence between them and the other paid him for it after he had completed it. So it would make it impossible for such proprietors to ever have a division fence which they owned in common unless one would sell his interest to the other, thereby putting the entire ownership in that other, and then buy back the interest he had sold, or permit himself to be sued for it. So too, it would prevent adjoining owners, who were, at the same time, fencing in outlying lands from “joining hands” and material and building the fence together.
By the proviso in section 5656, it is enacted that the adjoining owner may, at his option, build one-half the fence instead of paying for one-half of that already erected. I do not see why they may not build each his half in the first instance, or build jointly, and in either case divide it for repairs and have a statutory division fence. This is the reason of the matter and ought to prevail, unless the language of the statute is incompatible with such construction, and I think it is not. That the absolute letter of section 5656 need not be followed, is apparent. It provides that pay for one-half the fence shall be demanded by the owner, yet, of course, if the adjoining proprietor paid for one-lialf without demand, it would be a statutory division fence. So it provides that the adjoining proprietor shall pay for one-half the fence, yet it would not destroy the character of the fence if he did not pay but accepted of it as a gift. I only refer to this to show that we need not stand out for the very letter of this statute.
I agree to the second proposition, that an agreement between such owners for the erection of a division fence is not within the statute, for this is only a contract to erect a fence, and is not provided for nor contemplated by the statute. And for this reason I think the third instruction should have been given, viz.: “3. If the jury believe from the evidence that certain cattle, on or *552about the twenty-fifth day of July, 1886, entered the cornfield of plaintiffs at a point where there was no fence and where there had been no fence between plaintiff Madder’s land and defendant’s land, you .will find your verdict for the defendant, although you may further believe from the evidence that defendant had agreed and promised to build and maintain a fence at such point.” There was evidence tending to support the hypothesis put to the jury by this instruction and it was error to refuse it.
For this reason'the judgment will be reversed and the cause remanded.
Ramsay, J., concurs; Hall, J., adheres to the original opinion in the cause.