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such obstruction or nuisance, when ordered to do so by the president of such society, shall be liable to a fine of not less than five and not more than twenty dollars for every such offense. Id. § 18.]

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SECTION 1. [Live fences.]—Whenever any owner or owners, occupier or occupiers of any lands bordering upon any public road or highway, except a street or alley in a town, may wish to plant and cultivate any hedge or live fence, along the margin of his, her or their land, it shall be lawful for any such person or persons to set and plant any such hedge or live fence, precisely on the line of the road or public highway, and also to place on the margin of such road a protection fence, not to occupy more than six feet of the margin or edge of said road, and such protection fence, when placed opposite any live fence or hedge, actually set and planted, shall be permitted by the county commissioners, and all other persons, to remain for the term of seven years: Provided, That the county commissioners may grant permission in writing to the owner or owners of any live fence or hedge to continue such protection fence any term of time which they may deem necessary. [R. S. § 12, 7. G. S. § 17, 79.]

SEC. 2. Adjoining occupants.-When two or more persons shall have lands adjoining, each of them shall make and maintain a just proportion of the division fence between them, except the owner of either of the adjoining lands shall choose to let his lands lie open. [R. S. § 13, 8. G. S. § 18, 80.]

SEC. 3. [Proportion of value to be paid.]—When any person shall have chosen to let his lands lie open, if he shall afterwards enclose the same, or if the owner of lands adjoining upon the enclosure of another, shall enclose the same upon the enclosure of another, he shall pay to the owner of the adjoining lands a just proportion of the value, at the time, of any division fence that shall have been made by such adjoining owner, or he shall immediately build his proportion of such division fence. [R. S. § 14. G. S. § 19.]

SEC. 4. [Value, how determined.]-The value of such fence, and the proportion thereof to be paid by such person, and the proportion of the division fence to be made and maintained by him in case of his enclosing his land, shall be determined by any two fence viewers of the precinct, in the county. [R. S. § 15. G. S. § 20.]

SEC. 5. [Disputes, how settled.]-If disputes arise between the owners of adjoining lands, concerning the proportion of fence to be made or maintained by either of them, such dispute shall be settled by the fence viewers of the county; and in such case it shall be the duty of the fence viewers to distinctly mark and define the proportion of the fence to be made or maintained by each. R. S. § 16. G. S. § 21.]

SEC. 6. [Selection of fence viewers.]-When any of the above mentioned matters shall be submitted to fence viewers, each party shall choose one, and if either neglect, after eight day's notice to make such choice, the other party may select both. [R. S. § 17. G. S. § 22.]

SEC. 7. [Proceedings.]-The two fence viewers so chosen, shall examine the premises and hear the allegations of the parties; in case of their disagreement they shall select another fence viewer to act with them, and the decision of any two of them shall be final upon the parties to such disputes, and upon all parties holding under them. [R. S. § 18. G. S. § 23.]

SEC. 8. [Decision.]-The decision of the fence viewers shall be reduced to writing, shall contain a description of the fence, and of the proportion to be maintained by each, and their decision upon any of the points in dispute between the parties, submitted to them as aforesaid, and shall be forthwith filed in the office of the county clerk. [R. S. § 19. G. S. § 24.]

SEC. 9. Damages.]-If any person who is liable to contribute to the

*NOTE.-This article embraces: 1. Sections 12, 28, 30-33, chapter I. R. S. 1866. [G. S. § § 17-38. chapter 2. 2. Laws 1867, 12th Sess. Ter. 17.] Statute is exclusive. 12 Neb. 485.

erection or reparation of a division fence, shall neglect or refuse, for the period of four weeks after notice in writing so to do, to make and maintain his proportion of such fence, the party injured may make or repair the same at the expense of the party so neglecting or refusing, to be recovered from him with cost of suit; and the party so neglecting or refusing, after notice in writing, shall be liable to the party injured for all damages which thereby accrue, to be determined by any two fence viewers selected as above provided, and the fence viewers shall reduce their appraisement of damage to writing and sign the same. [R. S. § 20. G. S. § 25.]

SEC. 10. [Removal of division fence.-If any person who shall have made his proportion of division fence, shall be disposed to remove his fence and suffer his land to lie open, after having first given the adjoining owner at least sixty days previous notice in writing of his intention so to do, he may at any time between the first day of December in any year and the first day of April following, but at no other time, remove the same. [R. S. § 21. G. S. § 26.]

SEC. 11. [Removal-Damages.]-If any such fence shall be removed without such notice, the party removing the same shall pay to the party injured all such damages as he may thereby sustain, to be recovered with cost of suit. ·[R. S. § 22. G. S. § 27.]

SEC. 12. [Construction of fence.]-Whenever a division fence shall be injured or destroyed by fire, floods or other casualty, the person bound to make and repair such fence, or any part thereof, shall make or repair the same or his just proportion thereof, within ten days after he shall be thereto required by any person interested therein, such requisition to be in writing and signed by the party making the same. [R. S. § 23. G. S. § 28.]

SEC. 13. [Party injured may make fence.]-If such person shall neglect or refuse to make or repair his proportion of such fence for the period of ten days after such request, the party injured may make or repair the same at the expense of the party so refusing or neglecting, to be recovered with cost of suit. [R. S. § 24. G. S. § 29.]

SEC. 14. [Witnesses.]-Fence viewers may examine witnesses on any and all questions submitted to them, and either of such fence viewers shall have power to issue subpoenas for and administer oath to such witnesses. [R. S. § 25. G. S. § 30.]

SEC. 15. [Fence viewers.]—In all organized counties, justices of the peace shall be ex-officio fence viewers of the county. [R. S. § 26, 10. G. S. § 81, 81.]

SEO. 16. [Fees of fence viewers.]-Fence viewers shall be entitled to one dollar per day each for the time necessarily spent as above provided to be paid in the first instance, by the party requiring the service; and all expenses of the view shall be borne equally between the parties, except in case of view to appraise damages for neglect or refusal to make or maintain a just proportion of the division fence, in which case the cost of view shall be paid by the party in default, and may be recovered as a part of the damage assessed. [R. S. § 27, 10. G. S. § 32, 81.]

SEC. 17. [Damages.]-Damage accruing to any person or persons, under the provisions of this chapter, may be recovered in a civil action, in any court of this state. [R. S. § 28. G. S. § 33.1

SEC. 18. [Lawful fence defined.]-Such structures as shall be used for a fence, to inclose lands, shall be as follows:

I. A rail fence shall consist of at least six rails, said rails to be secured by stakes at the end of each panel, well set in the ground, with a rider upon said stakes. A board fence shall consist of not less than three boards of at least five inches in width and one inch thick, said boards to be well secured to posts, the posts to be not more than eight feet apart. A rail and post fence shall consist of at least three rails, well secured at each end to posts, and posts to be not more than ten feet apart. A pole and post fence shall consist of not less than four poles, to be well secured to posts, said posts to be not more than seven feet

apart. A wire fence shall consist of at least four wires, of a size not less than number nine fencing wire, to be well secured to posts, said posts to be at no greater distance than one rod from each other; and there shall be placed between every two of said posts, one stake or post to which the wire shall be attached.

II. The fences described in the preceding section shall be at least four and one-half feet in height and in the construction of said fences the spaces between the boards, rails, poles, and wires herein provided for, shall not exceed one foot each, measuring from the top.

III. A hedge fence of osage orange shall consist of at least one row of plants, said plants not to be more than eight inches apart at the surface of the ground, and said hedge shall be such as fence viewers shall decide a lawful fence. A hedge fence of willow or other trees used for that purpose, shall consist of at least one row of such trees standing not more than fifteen inches apart at the surface of the ground, and at least two and one-half inches in diameter, and at least six feet in height.

IV. Fence known as "Warner's Patent" shall be at least four and a half feet in height, and consist of not less than five boards, said boards to be at least five inches wide, and one inch thick. [12 Sess. Ter. 1867, p. 17. G. S. § 34, 82.]

SEC. 19. [Damages by animals.]—If any domestic animal break into any enclosure, the person injured thereby shall recover the amount of damage done, if it shall appear that the fence through which said animal broke was a lawful fence. [R. S. § 30, 10. G. S. § 35, 82.].

SEC. 20. [Tender-Costs.]-If before trial the owner of such trespassing animals shall have tendered to the person injured, an amount, in lieu of damage and costs which may have accrued, which shall equal the amount of damage afterward awarded by the court or by the jury, or shall offer in writing to confess judgment for the same, and if notwithstanding, the said injured person refusing said offer, cause the trial to proceed, he shall pay costs, and recover only the damage awarded. [R. S. § 31. G. S. § 36.]

SEC. 21. [Planting crop on land not enclosed.]-If any person sow any grain, or plant any crop, without inclosing the same with a sufficient fence, as above provided, he shall be liable for all damages that any person or persons may sustain in consequence of such neglect to inclose the same. [R. S. § 32. G. S. $37.3

SEC. 22. [Article not applicable, when.]-This subdivision shall not extend to or in any wise affect any county in this state, in which horses, mules, cattle, sheep or swine, are restrained from running at large by reason of legislative enactment. [R. S. § 33. G. S. § 38.]

ARTICLE III.-HERD LAW.*

SEC. 1. [Owners of stock liable for damages.]-That the owners of cattle, horses, mules, swine, and sheep in this state, shall hereafter be liable for all damage done by such stock upon the cultivated lands in this state as herein provided by this act. [1871 § 1, 120. G. S. 83.]

SEC. 2. [Damage A lien on stock.]-That all damage to property so committed by such stock running at large, shall be paid by the owners of said

SEC. 18. This section is inserted in place of the original section 29, R. S., p. 10, the same taking effect May 1. 1867, and evidently repealing the original section by implication, which was as follows:

*SEC. 29. Any structure or hedge or ditch in the nature of a fence used for purposes of enclosure, which is such as good husbandmen generally keep, shall be deemed a lawful fence."

*NOTE.-This article embraces: 1. "An act for a general herd law to protect cultivated lands from trespass by stock." Laws 1871, 120. [G. S. 83-86.] It repealed prior laws upon the subject and applying to particular localities. Certain special acts (Laws 1871, 211,-Special laws 1873,-Laws 1875, 293, -"An act to allow cattie, horses, sheep and hogs to run at large on McKissick's Island, in Nemaha county," approved Feb. 28, 1881), are omitted from this volume. 2. "Acts amendatory of the herd law." [1875, 186. 1877, 62.] 3. “An act to restrain sheep and swine from running at large." Laws 1875, 190. 4. An act to prevent damage by certain domestic animals during the night time in the state of Nebraska, in organized counties where no herd law is in force." Laws 1879, 165.

Owner of stock not liable for trespass on uncultivated unenclosed land, unless he drive them there. 10 Neb. 492. 11 Id. 533. (See section 8. p. 51.) Remedy given not exclusive. Action for trespass lies, 12 Neb.

273. Taker up acquires no lien unless he comply with law. 13 Neb. 424.

stock; and the person whose property is so damaged thereby, may have a sien upon such trespassing animals, for the full amount of damages and costs, and may enforce the collection of the same by the proper civil action.

SEC. 3. [Notice.j-That when any such stock shall be found upon the cultivated lands of another, it shall be lawful for the owner or person in possession of said lands, to impound said stock, and if the owner of said stock can be found, and is known to the taker-up, it shall be the duty of said taker-up to notify said owner by leaving a written notice at his usual place of residence, with some member of his family over the age of fourteen, or in the absence of such person, by posting a copy of such notice on the door of said residence, of the taking up of said stock, describing it, and stating the amount of damages claimed; also, the name of his arbitrator, and requiring him within forty-eight hours after receiving said notice, to take the said property away, after making full payment of all damages and costs to the satisfaction of said taker-up of trespassing animals. Said notice may be in the following form: Mr. : You are hereby notified that on the day of, 18- -, your stock, of which I now have in my possession (here describe the animal or animals)-did trespass upon my land, and damaged the same to the amount of You are required to pay the above charges within forty-eight hours from the delivery of this notice, or the aforesaid stock will be sold, as provided by law. I have appointed Mr. to act as ar

bitrator should you not feel satisfied with the amount of damages claimed in the within notice. Provided, That no claim, for damages shall be maintained by the taker-up without the notice contemplated in this section shall have been given, when the owner is known by the taker-up of such stock.

SEC. 4. [Refusal of owner to appoint arbitrator.]-If the owner of said stock shall refuse, within forty-eight hours after having been notified in writing, to pay said damages claimed, or appoint an arbitrator to represent his interest, said animal or animals shall be sold upon execution as required by law, when said amount of damages and costs have been filed with any justice of the peace of the county within which said damages may have been sustained.

SEC. 5. [Arbitrators.]-In case the parties interested can not agree as to the amount of damages and costs sustained, each party may choose a man, and, in case the two men chosen cannot agree, they shall choose a third man, who, after being duly sworn for the purpose herein named, the three shall proceed to assess the damages, possessing for that purpose the general power of arbitrators.

SEC. 6. [Award.]-The said arbitrator or arbitrators shall made [make] an award in writing, which, if not paid within five days after the award has been made, may be filed with any justice of the peace in the same county, and shall operate as a judgment, which judgment shall be a lien upon the stock so taken up, and execution may issue. upon said stock for the collection of said damages and costs, as in other cases: Provided, That either party may have an appeal from said judgment, as in other cases before justices of the peace. Said arbitrators shall be allowed two dollars each for their services: Provided further, That if before the trial by said arbitrator or arbitrators, the owner of said stock shall tender to the person injured, an amount in lieu of said damage and costs which may have accrued, which shall equal the amount of damage afterward awarded by the arbitrators, court or jury, or shall affirm [offer in] writing, to confess judgment for the same, and if, notwithstanding the said injured person refusing said offer, cause the trial to proceed, he shall pay costs and necessarily the damage awarded. [Amended, 1875, 186.]

SEC. 7. [Estrays.]-In case the owner of said stock is not known or found in said county, as herein set forth, the taker-up of said stock so trespassing up

SEC. 3.-The notice must be given within a reasonable time. 6 Neb. 271. Waived by agreement to arbitrate. 12 Neb. 112. A notice was signed by the taker-up as follows: "This is to notify you that I did, on Saturday, Nov. 7, 1874, take up one hog belonging to you, on section 4. east of s. e. % of said section. I am damaged to the amount of $3.00. I do hereby appoint E. B. Smith and A. M. Smith as arbitrators to appraise said damages if you do not see fit to pay the same with costs." It was served on the owner Nov. 10, 1874. Held sufficient. 6 Neb. 273. Replevin does not lie without tender. 12 Neb. 112.

on cultivated lands, shall, in such cases, proceed as provided by law regulating estrays, and the stock shall be held liable for all damages and costs.

SEC. 8. [Cultivated lands.]-That cultivated lands, within the meaning of this act, shall include all forest trees, fruit trees, and hedge-rows planted on said lands, also all lands surrounded by a plowed strip, not less than one rod in width, which strip shall be plowed at least once a year. [1881, chap. 2.]

SEC. 9. [Exception.]-It shall be unlawful for any stock to run at large upon the lands designated in sections seven and eight of this act, at any season of the year, except as exempted by section ten of this act; Provided, That the operations of this act shall not extend to the counties of Dakota and Dixon; Provided further, That it is the intention of this act to extend all the provisions of the original act entitled, "An act to protect cultivated lands from trespass by stock," approved March 8, 1871, to all the territory within this state not specially exempted by the provisions of said original act. [Amended 1885, chap. 1.]

SEC. 10. [Suspending the law.]-The operation of this law may be suspended within any county in this state, in the manner hereinafter provided; whenever the qualified voters of any county in this state desire to have the operation of this law suspended, within said county, and a majority of said voters shall apply by petition to the county commissioners of said county, praying for an election to be called for such purpose, it shall be the duty of said county commissioners to submit at the next general or special election, to the qualified voters of said county, a proposition for the suspension of the operation of said law, within said. county, which proposition shall be in form as follows: "For suspension of herd law," "Against suspension of herd law." Said proposition shall be written or printed on the ballots of those voting at such election; and if at such election, it shall appear that a majority of the votes cast on said question shall be for such proposition, then the operation of such law shall be suspended within the limits of such county, at the expiration of twenty days from the official canvass of the vote in said county. Provided, That where the law has been suspended as herein provided for it may be again revived by submitting the question to the qualified voters of said county, in the manner and form herein required for the submission of the question of the suspension of said law. [Amended 1885, chap. 2.]

SEC. 11. [Action against owner.]-Nothing herein contained shall be so construed as to prevent any owner of cultivated lands, or fruit and forest trees from maintaining an action for all damages caused by stock which has escaped or been driven away from the premises of the party, thus damaged, against the owner of the stock causing such damage.

SEC. 12. [Sheep and swine.]-That from and after the first day of March, A. D. 1875, sheep and swine shall be restrained from running at large in the state of Nebraska. [1875 § 1, 190.]

SEC. 13. [Damages.]-That all damages to property committed by such stock so running at large, shall be paid by the owner of said stock, and the person whose property is damaged thereby, may have a lien upon said trespassing animal for the full amount of damages and costs, and enforce and collect the same by the proper civil action. [Id. § 2.]

SEC. 14. [Running at large in the night time.]-No cattle, horses, mules, swine, or sheep, shall run at large during the night time, between sunset and sunrise, in the state of Nebraska, and the owner or owners of any such animal shall be liable in an action for damages done during such night time. [1879 § 1,165.] SEC. 15. [Damages.]-Damages shall be assessed and collected by notice given to owners, and arbitrators chosen, stock sold, judgment awarded; and in case of estrays, as provided in sections 2, 3, 4, 5, 6, 7 and 8 of this article.

ARTICLE IV.-MISCELLANEOUS.

DAMAGES TO CULTIVATED LANDS.

SEC. 1. [Penalty.]—That any person or persons who shall go upon or pass

SEC. 12. Cited 14 Neb. 16. SEC 14. Cited 14 Neb. 74.

SEC. 1. This act does not take away right of owner to a reasonable resistance against trespassers. 16 Neb. 503.

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