SEC. 3. In Sonoma, Napa, El Dorado, Yuba and Marin, a lawful fence shall be:

1st. Post and rail fences, not less than four by six inches, set in the ground not less than two feet, with rails not less than three inches thick, placed not more than five inches. apart for the first three feet and after that not more than eight inches apart, the fence to be not less than five feet high.

2d. Worm fences shall be five feet high, with additional stakes and riders; no greater space to intervene between the rails than in a post and rail fence.

3d. Post and slat fences shall be of the same height and with the same space between the slats; the posts to be not less than twelve inches in circumference and set not less than two feet in the ground; the slats not to be less than one and one-half inches thick and fastened with twelvepenny nails.

4th. Paling fence shall be of the same height, post of the same size, set in the ground the same depth and not more than ten feet apart.

5th. Ditch fence shall be four feet wide at top and three feet deep, with posts set in the embankment not over seven feet apart, with three slats not less than four inches wide and one and a half inches thick, all well fastened to the post. Gen. Laws, 3034.

SEC. 4. In Contra Costa, a fence is a lawful fence constructed of posts of reasonable size and strength, firmly set in the ground, not more than twelve feet apart if a rail or picket fence, and not more than eight feet if a plank fence, the rails or planks of reasonable size and strength, securely fastened to the posts to the height of four and a half feet and reasonably close. If a picket fence, the pickets of ordinary size and strength, strongly nailed to a rail above and one below, or driven into the ground and nailed to a rail above, reasonably close, and four and a half feet high. If a ditch fence, three and a half feet wide at the top, three feet deep, embankment on the inside of the inclosure, with a rail or plank or picket fence on the embankment to the height of three feet, or any other kind of fence equivalent in height, quality and strength, to the above kinds of fences. Gen. Laws, 3047.

SEC. 5. In San Bernardino, Colusa, Shasta, Tehama, Placer and Yuba, a lawful fence must, if built of stone, be four and one-half feet high; if rails, five and one-half feet high; if a post and rail fence or picket fence, it shall be constructed of posts of a reasonable size and strength, securely fastened to the posts, to the height of four and a half feet and reasonably close; if a picket fence, the pickets shall be strongly nailed to a rail above, reasonably close; if a ditch fence, the ditch to be at least two and a half feet deep and three feet wide at the top, the embankment to be either on the inside or outside of the inclosure, with a rail, board or picket, fence on the embankment to the height of three feet; or any other kind of fence equivalent in height, quality and strength, with the above kind of fences, is a lawful fence. Gen. Laws, 3050.

SEC. 6. When a fence has been erected by any person on the line of his land and the person owning the land adjoining thereto shall make or cause to be made, an inclosure on the opposite side of such fence so that such fence may answer the purpose of inclosing his ground also, such person shall pay the owner of such fence already erected onehalf the value of so much thereof as serves as a partition fence between them. And if the party so inclosing shall neglect or refuse to pay the one-half, the land so inclosed shall become liable therefor, and the value of one-half of such fence shall become and remain a lien upon such land and shall draw interest at the rate of fifteen per cent. per annum until paid. Notice of such lien shall be filed in the office of the recorder of the county, as provided for mechanic's lien. The value of the fence at the time of the inclosure, with interest thereon, shall be the amount to which the builder is entitled. Gen. Laws, 3065.

SEC. 7. When it shall be necessary to build a partition fence, in order to protect the rights and interests of either of the adjoining occupants of land, the other or others, when notified of such fact, shall proceed to erect one-half of such partition fence-shall be erected as nearly as possible on the line of such land. And if, after six months' notice given, either party shall persist in refusing to erect such fence, the party giving the notice may proceed to erect

the entire fence and collect by law the one-half of the cost of such fence from the other party, and shall be entitled to a lien, as is provided for mechanics. Gen. Laws, 3037.

SEC. 8. All partition fences separating adjoining inclosures shall stand upon the line; if the owner of land, when building a fence, shall fail to do so, and when told to put the same on the line shall refuse, shall subject himself to one-half the cost of its removal and erection in the right place. Gen. Laws, 3038.

SEC. 9. The respective owners or lessees of lands which now are or hereafter may be inclosed with fences, shall keep up and maintain in good repair all partition fences. between their own and the next adjoining inclosures, in equal shares, so long as both parties continue to occupy or improve the same. Gen. Laws, 3039. The last four sections do not apply to Butte, Amador, Tuolumne, San Diego, Nevada, Santa Barbara, San Bernardino, Colusa, Placer, Yuba, Trinity, Shasta, Klamath and Siskiyou.

SEC. 10. In the county of Contra Costa, where one of several persons owning lands adjoining to the other or others, which is inclosed by one fence, and either desires that a partition fence shall be built, he shall notify the other or others, and each shall build his proportion of the fence; on failure to do so within three months the party giving the notice may build the fence and collect from the other or others in default, by law, a just proportion of the cost of the fence together with costs of suit. Partition fences dividing lands shall be kept in repair by all the parties in interest. If either party fails to repair after five days' notice, the party giving the notice may repair and collect, by law, from the others a due proportion of the expense of repairs and costs of suit. A party having built or paid for a portion of a partition fence shall have the right to remove or exact pay for the same, when the fence shall cease to be a partition fence, by the removal of the outside inclosure. Gen. Laws, 3049.

SEC. 11. In San Bernardino, Colusa, Shasta, Tehama, Placer and Yuba counties, also in Tuolumne, provisions are similar to the preceding section.

CHAPTER L.

FERRIES AND TOLL-BRIDGES.

SECTION 1. At common law, no bridge or ferry could be erected so near another, bound by law to be provided with attendance, crafts, etc., as to draw away its profits. Upon the principle that such prohibition was for the public good, it was deemed unreasonable to suffer another to interfere with the profits of a bridge or ferry already established at considerable expense, perhaps, to the owner, as such interference was discouraging to undertakings of the sort, and consequently disadvantageous to the public. It is a decision of the common law, that if a ferry be erected so near an ancient ferry on the same stream as to draw away its custom, it is a nuisance to the owner of the old one, and in such a case an action lies by the owner of the first ferry against the owner of the new one, although the latter be a free ferry-for the injury to the plaintiff is not in the gains of the defendant but in drawing away the travel and thereby diminishing his tolls and the value of his franchise. In this state, no person has a right to establish a bridge or ferry so as to receive compensation for the same, unless authorized to do so by license issued by order of the board of supervisors. A free ferry or bridge may be established, provided there is no regularly-established bridge or ferry within one mile, immediately above or below. When, however, the board of supervisors has granted a license authorizing the erection of a public bridge or the establishment of a public ferry, then no other bridge or ferry, whether free or not, can be established within one mile immediately above or below it, unless in the opinion of the board of supervisors it is required by the public convenience. A free bridge or ferry, in the immediate vicinity of one regularly licensed, would be more injurious than the establishment of one regularly licensed to receive toll; as it would render the established crossing of no value whatever, while the other would only divide the profits. To say that the legislature only intended to prohibit licensed bridges and ferries and not

those which are free, would be to defeat the very object the legislature had in view. The fact that a free bridge or ferry so established, within one mile of one already licensed, issued certificates for one dollar by which the holder was entitled to passage for one month, does not constitute the holder a joint stockholder in the bridge or ferry. It is but another mode of payment and a mere evasion of the law, and subjects the owners to punishment for a misdemeanor under the statute. 6 Cal. 594-598.

SEC. 2. Before an action can be brought for interference with a ferry privilege-a vested right-the plaintiff must fully comply with the laws in relation thereto. 5 Cal. 47.

SEC. 3. The act of 1855 concerning ferries does not confer on the party an exclusive privilege, and he cannot maintain a civil action against any one who intrudes upon or injures the franchise; it confers only a limited right upon the party for the protection of which provision is made by indictment. Where a new right is introduced by statute, the party complaining of its violation is confined to the statutory remedy, so far as the courts of common law are concerned. If, however, the right existed at common law, the remedy provided by statute is merely cumulative. Ferry privileges are created by statute of this state, and no remedy by an action on the case is given the former act providing a remedy by a civil action having been repealed. Courts of chancery, however, can give relief. 7 Cal. 129.

SECTION 1. To plead a former judgment in bar, it must appear not only that it was upon the same cause of action but between the same parties. 9 Cal. 130.

SEC. 2. A plea of a former suit pending is no bar to an action where the complaint in the former suit is so defective that a judgment rendered thereon would be a nullity. 9 Cal. 338.

SEC. 3. The judgment of a court of competent jurisdic