54 Iowa 578 | Iowa | 1880
The fence viewers have jurisdiction only when a controversy arises between the respective owners of land about partition fences. Code § 1492. Peschongs v. Mueller, 50 Iowa, 237.
The plaintiff’s land did not join the defendant’s. The fence, then, was not a partition fence by reason of its location. Could it be such by reason of its use? We think not. The alley was liable to be opened at any time.
If we regard it as a partition fence, the defendant was liable not simply to pay for past use (which he has done, and as a neighbor perhaps ought to do) but to contribute to the erection and maintenance of it. But it is not claimed that the
■ We conclude, then, that the fence was not a partition fence within the meaning of the statute; and if we are correct in this the fence vie vers had no jurisdiction in the matter, and the defendant could not properly be charged with costs for their services.
Affirmed.