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 fool 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. $37.1

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.]

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 cattle, 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. 18 Id. 178.

stock; and the person whose property is so damaged thereby, may have a lien 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 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

on the

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.-Notice must be given within reasonable time. 6 Neb. 271. Waived by agreement to arbitrate. 12 Neb. 112. Notice held sufficient. 6 Neb. 373. Replevin does not lie without tender. 12 Neb. 112. Replevin lies if taker-up refuses to appoint his arbitrator. 18 Neb. 177. 19 Id. 580. Owner has 48 hours, after notice, to pay damages, and take stock away. 19 Neb. 580. Additional damages cannot be added after service of notice. 19 Neb. 581. SEC. 4. When proof of damages and service of notice is filed, issuance and service of summons not necessary to give justice jurisdiction to issue execution. 17 Neb. 101.

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, and this act. [1885, Ch. 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. 1. This act does not take away right of owner to a reasonable resistance against trespassers. 16 Neb. 503.

over any cultivated or enclosed land in this state, without the consent of the owner or occupant thereof, or who shall do, or whose accompanying dog shall 'do any damage to or upon said premises, or to any property thereon, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than the amount of damage committed, nor more than double the amount of such damage, and in addition thereto shall be liable to the person suffering such damages, for the amount thereof. [1871, 126. G. S. § 50, 86.]

SEC. 2. [Refusal to depart from another's land.]-Any person or persons who shall enter or go upon any enclosure or cultivated lands, owned or occupied by another, and shall refuse upon request of the owner or occupant thereof to go immediately therefrom, shall for each such refusal be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine not less than five dollars, nor more than fifty dollars, for each offense so committed. [Id. § 2.]

SHADE TREES.

SEC. 3. [Duties of corporate authorities.]-That the corporate authorities of the cities and villages of the state of Nebraska shall cause shade trees to be planted along the streets thereof. [1871 § 1, 51. G. S. 87.]

SEC. 4. [Tax.]-For the above purpose a tax of not less than one dollar, nor more than five dollars, in addition to all other taxes, shall be levied upon each lot adjacent to which the trees are to be planted as aforesaid and collected as other taxes. [Id. § 2.]

SEC. 5. [Distance.]-Trees shall be annually planted when practicable on each side of one-fourth of the streets in each city and village in the state of Nebraska, until all shall have shade trees along them not more than twenty feet. apart. [Id. § 3.]

SEC. 6. [Same.]-The corporate authorities aforesaid shall provide, by ordinance, the distance from the side of the street that trees shall be planted, and the size thereof. [Id. § 4.]

SEC. 7. [Exemption.]-Provided the owner of any lot or lots may plant trees adjacent thereto where ordered as above in the manner and of the size prescribed, and on making proof thereof by affidavit to the collector, said affidavit shall exempt said owner from the payment of the aforesaid tax. [Id. § 5.]

SEC. 8. [Penalty.]-Any person who shall materially injure or shall destroy the shade tree or trees of another, or permit his animals to injure or destroy them, shall be liable to a fine of not less than five dollars nor more than fifty dollars for each tree thus injured or destroyed, which fine shall be collected on complaint of any person or persons before any court of proper jurisdiction. One-half of all fines thus collected shall be paid to the owner of the trees injured or destroyed; the other half shall be paid into the school fund. [Id. § 6.]

SEC. 9. [Not applicable.]—That this act shall not apply to any person that is occupant of any business lot without his consent. [ld. § 7.]

CULTIVATION OF TIMBER.

SEC. 10. [Bounty.]-That when any person shall plant and properly cultivate for the term of five years, six rows of trees, eight feet apart, and the trees four feet apart in the row-along either the north section, or the half section line, running east and west-said rows to be not nearer to the said north section or half section line than four feet or than the south line of any road which may be laid out on said north section or half section line, or when any person shall fill out to the standard above prescribed, and keep the same in a proper state of cultivation for the time above stated, any rows of trees that may previously have

NOTE. This article embraces, 1. "An act to protect owners and occupants of enclosed and cultivated lands from trespass and damage" Laws 1871, 126. G. S. 86. 2. "An act to provide for the planting of shade trees in towns, cities and villages." Laws 1871, 51. G. S. 87. 3. "An act to encourage the growth and cultivation of timber in the state of Nebraska." Laws 1879, 187. The act to encourage the growth of timber and fruit trees (1869, 68, G. S. 88) having been pronounced unconstitutional, 7 Neb. 228, is omitted. 10 Neb. 215. SEC. 8. But see sections 88, 89, 90 and 91, Part III Criminal Code this volume passed subsequent to the above section. And see also as to fines, Constitution, Art. VIII, Sec. 5.

been planted along said north section or said half section line, it shall be the duty of the county commissioners to pay to such person by warrant on the county treasurer, a sum of money, amounting to three dollars and thirty-three cents per acre, for each acre so planted and cultivated, annually, so long as the same is planted and kept growing and in a proper state of cultivation, for a period not to exceed the space of five years, and to an extent not to exceed three acres of land. [1879 § 1, 187.1

SEC. 11. [Duty of assessors.]-It shall be the duty of the assessor of each precinct to make proper examination and report to the county commissioners at the time of his annual report, the condition of all timber so planted and cultivated under the provisions of this act. [Id. § 2.]

CHAPTER 3.-AMENDMENTS TO THE CONSTITUTION.

SECTION 1. [Amendments-Proposal-Submission.]-That amendments to the constitution may be proposed by joint resolution in either house of the legislature of this state, and if the same shall be voted for by three-fifths of all the members elected to each of the two houses in the manner provided by section one (1) of article fifteen of the constitution, the amendment or amendments proposed shall be submitted to the electors of this state for adoption or rejection in the manner hereinafter provided. [1877 § 1, 114.]

SEC. 2. [Same-Publication.]-Such amendment, or amendments shall be published in full by the secretary of state in one newspaper in every county in this state in which a newspaper is published, to be designated by the governor, for at least three months before the next election of members of the legislature ensuing the passage of said proposed amendment, with notice prefixed thereto that at said election said proposed amendment or amendments will be submitted to the electors of this state for adoption or rejection.

SEC. 3. [Ballots.]-At such election on the ballot of each elector voting for the proposed amendment or amendments to the constitution shall be written or printed the words: "For proposed amendment to the constitution," and Against said proposed amendment to the constitution.'

SEC. 4. [Election-Notice-Returns.]-Public notice that the proposed amendment or amendments is, or are to be voted upon, shall be given in each county in the same manner as is or may be required by law regulating general elections, and the returns shall be made and the votes canvassed in the same manner and by the same officers as is or may be required by the law in the case of electing the executive officers of the state.

SEC. 5. [Adoption-Proclamation.]-If a majority of the votes cast at the election herein provided for, be for the proposed amendments, the governor, within ten days after the result is ascertained, shall make proclamation, declaring the amendments to be part of the constitution of the state.

SEC. 6. [Enrollment-Preservation.]-Whenever any amendments to the constitution shall have been proposed to, and adopted by the electors of this state, as by this act provided, the same shall be enrolled and numbered.in the order of time in which they may be adopted, and preserved by the secretary of state among the public records of his office.

CHAPTER 4.-ANIMALS.

ARTICLE I.-MISCELLANEOUS.

SECTION 1. [Stock-growers and drovers.]-Every person who shall keep neat cattle, horses, mules, sheep, or goats, for their growth or increase with

CHAP. 3. "An act to provide the manner of proposing amendments to the constitution, and submitting the same to the electors of this state." Laws 1877, 114. See Laws 1887, Chap. 2, for special act providing for recount of ballots, etc., on amendment voted at election held in November, 1886.

CHAP. 4. SECS. 1-9. "An act regulating the herding and driving of stock." Lawa 1879, 67. Took effect June 1, 1879. This act repeals Laws 1975, 190; Laws 1877, 137; and section 79 criminal code, G. S. 737.