12 Neb. 483 | Neb. | 1882
■ A demurrer to the petition in this ease was sustained' in the court below and the action dismissed. The following is a copy of the petition:
Aldana Burr, plaintiff, complaining of Ellis P. Hamer, defendant, for cause of action says: This plaintiff on and prior to the first day of May, A. D. 1879, was in occupation and was the owner of lot 38, and the defendant, Ellis P. Hamer, at the time aforesaid was occupying and claiming to be owner of lot 37, all in Little’s subdivision, of the west half of the southwest quarter of section 34, in township 10 north, of range 6 east of the sixth principal meridian in said county of Lancaster; that said lands are adjoining contiguous tracts; this plaintiff, prior to the date aforesaid, enclosed her said lands, and in doing so, constructed a division fence on the line between' said lots, and the defendant, on or about the date aforesaid, enclosed his said lands, and in so doing connected his fences with the division fence constructed by this plaintiff, as aforesaid, making such division fence serve to enclose his adjoining lands, appropriating and using such fence as a division line fence; plaintiff further says that said fence when so appropriated was of the value of $71.00, and the defendant by such appropriation thereby undertook and agreed and became liable to pay this plaintiff for one-half the value thereof at such time, to-wit: the sum of $35.50, yet the said defendant, though often requested, has not paid this plaintiff said sum of money, or any part thereof, but is indebted to plaintiff in said sum, and interest from the said first day of May, A. D. 1879; wherefore
At common law a party was not required.to fence against an adjoining close. Kent says: “ In connection with this subject of party walls, may be mentioned the law concerning division fences between the owners of adjoining lands, These interests are generally the object of local statute regulations. The doctrine is that at ■common law the tenant of a close was not bound to fence against an adjoining close, unless by force of prescription ; and if bound by prescription to fence his close, he was not bound to fence against any cattle but such as were rightfully in the adjoining close. If not bound at common law to fence his land, he was nevertheless bound, at his peril, to keep his cattle on his own grounds, and prevent them from escaping. The legal obligation of the tenants of adjoining lands to make and maintain partition fences, where no prescription exists, and no agreement has been made, rests entirely on positive provisions •by statute; and trespass will lie against the owner of cattle entering on the grounds of another, though there be no fence to obstruct them, unless he can protect hina.self by statute, or prescription, or agreement. The public have no rights, even in the public highway, but a right of way or passage; and if cattle be placed in the highway for the purpose of grazing, and escape into an adjoining close, the owner of the cattle, unless he owns the soil of that part of the highway on which he placed .his cattle; •cannot avail himself of the insufficiency of the fences in excuse of the trespass,” 3 Kent Com., 438. • See also Stafford v. Ingersol, 3 Hill, 38. Hilton v. Ankesson, 27 L. T. (N. S.),519. Rust v. Low, 6 Mass., 90. Minor v. Demand, 18 Pick., 266. Thayer v. Arnold, 4 Met., 589.
Our statute provides that “ when two or more persons ¡shall have lands adjoining, each of them shall make and'
“ When any of the above mentioned matters shall be-submitted to fence viewers, each party shall choose one, and if either neglect, after eight days notice, to make such choice, the other party may select both.” “ The two-fence viewers so chosen, shall examine the premises, and hear the allegations of the parties; in case of their disagreement, they shall select another fence viewer to act. with them, and the decision of any two of them shall be final upon the parties tó such disputes, and upon all parties holding under them.”
“ The decision of the fence viewers shall be reduced to writing, shall contain a description of the fence, and of the proportion to be maintained by each, and their decision upon any of the points in dispute between the par
“ If any person who is liable to contribute to the-erection or reparation of a division’ fence, shall neglect- or refuse, for the period rof four weeks after notice in writing to dp so, to make and maintain his proportion of such fence, the party injured may make or repair the same at the expense of the party so neglecting or refusing, to be recovered from him with cost of suit; and the-party so neglecting or refusing, after notice in writing,, shall be liable to the party injured for all-damages which-thereby accrue, to be determined by any two fence viewers selected as above provided, and the fence viewers shall reduce their appraisement of damage to writing and sign the same,” etc. Comp. St., 47-8.
The statute makes justices of the peace fence viewers of their respective counties, and they are expected to go upon the premises where the fence in dispute has been or is to be erected, and there, in the presence of the parties or after notice to them, upon actual view, determine the matter submitted to them. The statute also authorizes them to issue subpoenas for, and examine witnesses, in order that they may make a correct determination. As-the whole proceeding is statutory the mode of procedure-therein provided must be followed. This requires the fence-viewers, where the parties are unable to agree, to apportion to each the portion of fence to be made and maintained by him. When this is done, each party will own and have charge of a specific portion of the fence, and must keep the same in repair, and if he fail to do so the-law provides a remedy. But as at common law a land owner could not be compelled to build a partition fence,, a party, therefore, by the erection of such fence acquires-no right of action for contribution from the owner of' lands adjoining. Neither is there any allegation in the petition that would sustain an action of trespass.
The writer will be pardoned for saying that he prepared and introduced the bill in relation to partition fences passed by the legislature of 1859-60 — the present law. The object being to cure the defect in the common law apparent in this case.
The judgment of the district court is affirmed.
Judgment Affirmed.
