[HISTORY: Adopted by the County Commissioners of Kent County 4-3-1990
as Ch. 8, Art. II, of the 1989 Code. Amendments noted where applicable.]
Wherever joint fences have been or may be established in said county
for the mutual advantage of different owners or possessors of adjoining lands,
each party shall keep in good repair his proper proportion thereof in the
manner following, that is to say, all post and rail or plank fences shall
be at least four (4) feet six (6) inches high and with not more than four
(4) inches between the lower and second and not more than five (5) inches
between the second and third rails, and all worm or other fences shall be
five (5) feet high, the height of said fences to be in every case computed
from the ground or base of any embankment upon which they may be erected.
If either of the parties so making or keeping a joint fence shall not comply with the provisions of § 87-1 and shall refuse or neglect to repair said fence within twenty (20) days after notice, in writing, shall be given him, his agent, tenant or overseer, any Justice of the Peace, upon proof of such notice, may, by warrant under his hand and seal, authorize the party aggrieved to repair or construct said fence.
The party making such repairs or constructing said fence and the party
upon whose refusal or neglect they were made shall each select a person to
assess the costs and expenses of the same, and if the party neglecting to
repair or construct shall also refuse to make such selection, the party aggrieved,
after ten (10) days' notice, in writing, served upon the refusing party,
his agent or overseer or left at his usual place of abode, may select two
(2) sensible and discreet persons with power, in case of disagreement, to
call in an umpire to value and assess, under oath, the costs and expenses
aforesaid, and their award, under their hands and seals, shall be final and
conclusive, and the party in whose favor it is made may recover the same in
the same manner as other debts of a like amount.
Whenever joint fences are made and not kept in repair according to the provisions of § 87-1, the party aggrieved or likely to be injured, instead of pursuing the remedy provided in §§ 87-2 and 87-3, may discontinue said joint fence upon giving three (3) months' notice to the defaulting party, his overseer, tenant or agent; in all other cases (unless by mutual consent), twelve (12) months' notice shall be required to discontinue any joint fence.
If any person not having his grounds enclosed with such sufficient fence
as aforesaid shall hurt, kill or do any damage to any horse, sheep, hogs or
any kind of cattle belonging to any other person or cause the same to be done,
he shall make good all such damages sustained thereby to the owner of such
stock as shall be awarded by two (2) respectable, disinterested freeholders
of the vicinity, under their oath, who may be summoned to view the same by
the respective parties interested, and, in case of their disagreement, it
shall be lawful for the referees to call in a third person, who shall qualify
as above required, and the decision of any two (2) of them shall be final,
and the damages awarded by them may be recovered in the same manner as small
debts.
Each freeholder who shall be called upon to value and assess such damages
shall be entitled to one dollar ($1.) per day for his services.
No action of trespass quare clausum fregit shall be adjudged to be maintained
or supported by evidence that any defendant in such action, or any horse,
cow, hog or other domestic animal belonging to such defendant, passed on or
over any waste or unenclosed land in Kent County or by proof that any such
animal trod down or ate the grass or herbage or rooted up or destroyed the
soil or earth on any such waste or unenclosed lands, and the defendant in
any such action may plead the general issue and give the special matter in
evidence.
No person shall distrain any horse, hog or other beast damage feasant
upon any waste or unenclosed land in Kent County.
