36 Mich. 226 | Mich. | 1877
This litigation originated in proceedings under ch. 14, C. L., concerning fences. Section 778 provides as follows: “Where any lands belonging to different persons in severalty shall have been occupied in common without a partition fence between them, and one of the occupants shall be desirous to occupy his part in severalty, and the other occupant shall refuse or neglect, on demand, to divide with him the line where the fence ought to be built, or to build . a sufficient fence on his part of the line when divided, the party desiring it may have the same divided and assignéd by two or more fence-viewers of the same township in the manner provided in this chapter.”
The next section provides for carrying out and enforcing the rights and duties so marked out, and is as follows:
“TJpon the division and assignment, as provided in the preceding section, the fence-viewers may, in writing under their hands, assign a reasonable time for making the fence, having regard to the season of the year, and if either party shall not make his part of the fence within the time so assigned, the other party may, after having completed his own part of the fence, make the part of the other and recover therefor double the ascertained expenses thereof,*228 together with the fees of the fence-viewers, in the manner provided in this chapter.”
Vail and Gordon, claiming to have built a strip of partition fence which Carpenter,, as adjoining occupant, had become bound to build and ought to have built under these provisions, sued him before a justice to recover double the ascertained expense, etc., and were allowed to recover. Carpenter appealed and the cause was tried by the circuit judge without a jury.
The judge made a finding and entered judgment against Carpenter for double the expense of the fence. Several objections are taken to the proceedings which it is not necessary to notice. a
The general question is, whether the finding justifies the judgment; and that it does not, seems clear. Where one attempts to enforce the penal liability allowed by this statute, it is incumbent upon him to show that in substance all the conditions have arisen which the statute contemplates as precedent to it, and in case judgment is given on a special finding, the finding must show, as a special verdict would, the existence of the requisite conditions, and if it do not, it cannot be aided by reference to the testimony which may have been given. Now, one of the conditions essential to the liability charged here is, that the fence-viewers, in writing under their hands, assigned a reasonable time for Carpenter to make the fence, and yet this is not found at all. Evidence appears to have been given on the subject, but no finding was made on-it. But there is-another question of greater moment. The evidence tended to show that Carpenter did not own the adjoining land, and had no power or control over it or connection with its-use or management. He claimed that his wife was owner and exclusive manager, and. that he was merely a lodger on the premises as consort of the owner, and that he carried on' business by himself away from these premises. The judge refers to the evidence on this subject and the claim of Carpenter, but makes .no distinct finding, as to occupancy. The finding is barely
This is a fatal defect in tbe case.
Tbe judgment must be reversed, and one entered here for Carpenter, with the costs of both courts.