Aylesworth sued the defendants in trespass, and, on the trial, gave evidence tending to show that, on several occasions in the years 1866 and 1867, the cattle of the said defendants broke and entered the close of the plaintiff, and injured and destroyed, among other things, a quantity of standing corn, and a quantity of corn fodder. The plaintiff also gave evidence tending to show that the close or premises of the said defendants, by them occupied, did not, on any side, lie adjacent to or join the close of the plaintiff, on which the said trespassed were committed. Thereupon the defendants put in evidence, tending to show that the partition fence, between the plaintiff’s close and the adjoining close of one Mr. Knickerbocker, was not four and a half feet high, nor in good repair, and that it formed a part of the enclosure of one of the corn fields in which said trespasses were committed.
Upon this evidence the Circuit Judge charged the jury that, in order to maintain this action, the partition fences, if any, inclosing the field in whole or in part, must be of *422lawful height; or, if the feDce be divided, then the part belonging to the plaintiff must be of lawful height; and he refused to charge that, if the close of the plaintiff did not adjoin the close of the defendants, the plaintiff was not bound to keep up the partition fences between him and the adjoining occupants, in order to entitle him to maintain an action for the trespasses in question.
"Under this charge, the jury rendered a verdict for the plaintiff for less than he conceives he is entitled to, and he has therefore brought error. The question in the case is one of statutory construction, and arises upon Aci 179, of 1861, which provides that “No person shall be entitled to recover any sum of money, in any action at law, for damages done upon lands by any beast or beasts, unless the partition fences, by which such lands are wholly or in part enclosed, and belonging to such person, or by him to be kept in repair, shall be of the same height and description as is required by the provisions of Comp. L. § 605 ”; that is to say, a fence four feet and a half high and in good repair, or something, which the proper fence viewers shall determine to be equivalent "thereto. The view of the Circuit Judge appears to be that under this statute every owner of land is bound, at his peril, to see to it that all the partition fences between himself and all the adjoining proprietors are kept of the lawful height and in the proper condition;- or, in case such fences have been apportioned between himself and such proprietors, for the purposes of repair, then that his own portion is thus kept up, and that failing in this duty, he can have no remedy for damages against any one whose beasts shall commit injury upon his land, whether it be an adjoining proprietor or any other person.
"We are all of opinion that the Circuit Judge has erred in his construction of this statute. The purpose of its provisions was to compel every person to discharge his duty in regard to partition fences at the peril of such losses as he *423might suffer from the depredations committed in consequence of his neglect by the beasts of those persons to whom the duty was owing.. What that duty is will appear from other statutory provisions.
Comp. L. § 606, provides that the respective occupants of lands inclosed with fences shall keep up and maintain partition fences between their own and the next adjoining inclosures, so long as both parties continue to improve the same.
The next section provides that in case any party shall neglect to repair or rebuild any partition fence, which of right he ought to maintain, the aggrieved party may complain to the fence viewers, who, after due notice to each party, shall proceed to examine the same; and if they shall determine that the fence is insufficient, they shall signify the same in writing to the delinquent occupant of the land, and direct him to. repair or rebuild the same within such time as they shall judge reasonable, and if such fence shall not be repaired or rebuilt accordingly, it shall’ be lawful for the complainant to repair or rebuild the same; and by §‘608 he is given a remedy to recover double the costs of such rebuilding or repair.
Section 609 provides that when any controversy shall arise about the right of the respective occupants in partition fences, or their obligation to maintain the same, either party may apply to the fence viewers, who are authorized to apportion to each his share thereof, and to direct the time within which each party shall erect or repair his share of the fence; which assignment, being recorded in the township clerk’s office, shall be binding upon the parties and all succeeding occupants of the lands, and they shall be obliged always thereafter to maintain their respective portions of said fence. *
Section 610 provides that in case any party shall neglect or refuse to erect and maintain the part of any fence assigned to him by the fence viewers, the same may be *424erected and maintained by the aggrieved party, who shall be entitled to recover double the value thereof.
It is very evident, under these statutory provisions that the duty of any person to keep up a partition fence, is one created by the statute in favor and for the protection of the adjoining proprietor, and that before that duty can become fixed so as to require him to keep in repair any particular portion of such partition fence, it must appear: First, that the adjoining proprietor improves his land, and, second, that either by consent or by the action of the fence viewers, a portion of the partition fence between them has been assigned to him to keep in repair. Adjoining proprietors are at liberty, if they see fit, to dispense with partition fences altogether, and if such fences are erected, no particular portion thereof belongs to either to be kept in repair by him, until in some legal mode the partition is made. Until one or the other has taken the necessary steps to effectuate such division, it is to be presumed he is satisfied to trust his property to such securities as the rules of the common law can give him, and to respond in damages under those rules if his beasts commit injury on the lands of other persons.
In the present case the plaintiff does not appear to have been under any obligation to the defendants to keep up any fence whatever. Their lands did not adjoin, and consequently there could be no partition fence between them. The 'plaintiff was prima facie entitled to recover, and the defendants, to excuse themselves under the statute, must bring the case within it. But if there could be no partition fence between them, it is plain the statute could not apply. It is suggested that the cattle of defendants went upon the plaintiff’s land from the adjoining premises oi ' Knickerbocker, and that they must be presumed to have been rightfully upon such adjoining premises; but the answer to this is: First, That the case is not put to the jury on any such basis; and Second, That admitting them *425to have (beeu rightfully there, and to have got over the defective fence* the charge would still be erroneous, inasmuch as it assumes that in case the partition fence between the plaintiff and Knickerbocker was not apportioned between them, the mere fact that such fence was insufficient will preclude a recovery; whereas, under that state of facts, it would be evident that the plaintiff was under no greater obligation to repair than Knickerbocker himself, and that the defendants could claim no protection under the law, inasmuch as Knickerbocker, in whose rights they would stand, could have claimed none himself had the damage been done by his own beasts.
It is said, however, that admitting the charge to be erroneous, the judgment should still be affirmed, inasmuch as the jury returned a verdict for the plaintiff, and must therefore have found the fence sufficient. Had the injury complained of been a single trespass only, there would be force to this position. But successive trespasses were complained of, and we cannot say that the jury did not find the fence sufficient at some of the times, and insufficient at others, and consequently render a verdict for less than the plaintiff was justly entitled to. The judgment should be reversed, with costs, and a new trial ordered.
The other Justices concurred.