353. Duty arising by agreement.

353.     Duty arising by agreement.

The erection and repair of fences may be made the subject of an agreement1. Where part of an estate is being sold, it is important that the contract should state expressly who is to erect or maintain the boundary fence between the part sold and the part retained and that this provision be carried into the conveyance, for in the absence of such a provision neither party will be under any obligation to fence2. A covenant to fence or to maintain fences is a positive covenant, and therefore the burden of such