Bechtel v. Neilson

19 Wis. 49 | Wis. | 1865

By the Court,

DlXON, C. J.

After an examination of the briefs of counsel, comment by us upon the provisions of the statute involved seems quite unnecessary. It is enough to say that we fully agree with the counsel for the defendants that it is only the “ occupants of lands enclosed with fences ” who are bound to maintain partition fences between their own and the next adjoining enclosures. Such is the language of section two, and such appears to us to have been the intention of the legislature as derived from the whole act.

¥e agree with the same counsel, too, as to the effect of the decision of the .fence viewers.

Their jurisdiction is special and statutory, and, unless the facts existed upon which they were authorized to act, it is no matter what they decided. Their proceedings were void. If, at the time, the lands of 'the defendants were unenclosed, or “ lay open to commons,” as the defendants offered to prove, then the action of the fence viewers was unauthorized and void; and their decision imposed no obligation upon the defendants either to build the fence or pay the damages for which this action is brought.

This evidence should have been received; and because it was not, the judgment is reversed and a new trial awarded.