Legal Notes.

Southern Cross, Volume 1, Issue 3, 15 April 1893, Page 5

Legal Notes.

BARBED WIRE .FENCES. fTAt the Birkenhead County Court recently, His Honor Judge Wynne Ffoulkes gave judgment in Stewart v. Wright. This w.as a case in which a claim'was made by Thomas Charles Stewart,- for £2 4s, damage done to his macintosh overcoat by a barbed wire fence, the property of Albert T. Wright, solicitor. The facts of the case were that on September 29, last year, the plaintiff and a friend were walking along a footpath leading from Wallasey-road to Mill-lane, Discard, one side of which was bounded by a barbed wire fence forming a division between the defendant’s field and the footpath. As the plaintiff was turning a corner in the path a gust of wind drove his macintosh coat against the fence, with the result that the coat caught in the barb of the fence and was torn. Evidence of other damage received by .pedestrians to their clothing by the same fence was also given. For the defence it was argued, that the fence was an ordinary style of fence at present, that it was not dangerous •in the sense of any decision of the court, that the plaintiff' had ample notice of the nature of the fence, and that, having such notice, he had not used ordinary •care in turning the comer, and also that the p4th was not a public one. On the last point his 'Honor at once ruled against the plaintiff. In delivering judgment,, his Honor said this was the first action of the kind taken in this circuit. The law did not prescribe what material must be used for making a fence ; but there was the general law applicable to fences as to other matters, that a man must not do on his own land that ■which became a nuisance to the public lawfully using a road on which his land abutted. There was no express decision of the High Court applying that maxin to barbed -wire fencing, but there were three decisions in the •county court condemnatory of such fences. His Honor referred to these ■ cases,, and also to the case of Elgin Company’s Road Trustees v. Innes before the Scotch Court of Session, in which a somewhat similar action was ■dismissed,, but with costs against the •defendant. - It was to be inferred from this case that although barbed ‘ wire was not illegal for forming a fence alongside a public way, yet the user of it who constructed a fence with it did so at his peril. There was abundance of English authority forsaying that if any one lawfully using a highway sustained injury from a public nuisance made or maintained on or near the highway he had the night of action for such injury against the person making or maintaining •such nuisano®. In the present case the fence was on a level with the footpath, . a position which is condemned as very dangerous by tire case in the Court of Session. It was true that the wire was attached to the posts on the field .side, and that the posts were closer tog-ether than in the Scotch case, but the very accident itself which injured the plaintiff’s macintosh and caused injury also in two other cases showed' that those arrangements were not sufficient to secure the public using the footpath from the dangers arising from the ■barbed wire in the fence. He must therefore hold that this fence was dangerous' to the public using the path, and a nuisance, and that the plaintiff was entitled to recover in this action unless he had been guilty •of contributory negligence in not taking due care. He did not think the evidence supported that view. A gust of wind—a very ordinary occurr-

ence —blew bis coat against the fence,and he did not think plaintiff had been negligent or careless. His judgment- must therefore be for the plaintiff and for the amount claimed, but he would give leave of appeal. Mr Wright, the defendant, said the matter was of such importance to so many owners that he was bound to expi'ess dissatisfaction with the effect

-of the judgment, but he must thank ' his Honor for the great care with which he had considered the question.