The opinion of the court was delivered by
Lowrie, J.
We are unable to discover anything like sufficient *97evidence that the defendant’s field is charged with a road along one side of it. Lapp, the former owner, talked of such a road, and marked some furrows where he intended it to he; but no road was made, and there is no evidence that when he sold to the plaintiff on one side, he granted the right; or when he sold to the defendant on the other, that he reserved it; and no evidence to charge the defendant with the knowledge of any grant. There was, therefore, only a line between the lands of the parties, and each had a right to insist upon a common partition fence along it. If neither party insist upon it, we must presume that they agree to use and occupy their respective lands in such a way as not to injure each other. Dispensing with a partition fence is an agreement to use so that it shall not be needed. But here it was not dispensed with. The defendant put up his half of the fence, and the plaintiff put up none, and refused to do it; defendant’s cattle passed from his land over the line into the plaintiff’s and injured his clover, and hence this action.
The court instructed the jury that, if the injury arose from the plaintiff’s default in the performance of his duty in respect to the partition fence, he could not recover; and we do not discover that this was erroneous. Under this instruction the jury could consider all the circumstances, and by them ascertain where the fault lay. Perhaps the court gave the jury fuller instructions than the case required, but we do not perceive any act or omission that furnishes the plaintiff with any just ground of complaint.
Judgment affirmed.