86 Kan. 93 | Kan. | 1911
The opinion of the court was delivered by
This was an action to recover an award of $180 made by fence viewers after a view of a hedge, fence 160 rods long which had grown .between
The court restricted the evidence to the value of the hedge as a fence and instructed the jury that they could only consider the value of the fence for the purpose of turning stock. The court took a correct view of the statute and the rights of the parties. The statute contemplates the erection of partition fences designed to turn stock and prescribes the height and character of a legal fence that may be made from the designated materials commonly used for fencing. (Gen. Stat. 1868, ch. 40 et al, Gen. Stat. 1909, §§ 3728-3781.) In section 3729 of the General Statutes of .1909 (Laws 1873, ch. 88, § 1) it is provided that “all hedge fences shall be of such' height and thickness as will be sufficient to protect the field or inclosure.” The theory of the law is that owners of adjoining lands, that are occupied or improved, are under mutual obligations to maintain partition fences in equal shares. If either
The supreme court of Connecticut approved an instruction to the effect that a party might build or repair a partition fence so as to make it a legal one, “provided he acted reasonably and did not make it needlessly expensive, but that he would have no- right in such case to be extravagant either in the materials used or in the workmanship; and that if the jury should
In an Ohio case, where a recovery was sought for one-half the value of a partition fence, which involved the character and quality of the fence, the court said:
“It is also to be observed in this connection, that whatever its character, the fence in question, in any case arising under the statute, is to be dealt with as a fence. It is to be appraised by the township trustees; but the question which it is their duty to determine, is not what the materials are worth for any other purpose, and not, necessarily, what the materials and labor cost, but what, in the condition in which .they find it, is its value as a fence. . This may or may not equal the cost, depending, among other things, upon what economy was used in its construction, the suitableness of the materials, the character of the work, and whether, by reason of decay or other caúse, it has deteriorated in value.” (Robb v. Brachmann, 24 Ohio St. 3, 11.)
That viewers are limited to the value of a fence reasonably sufficient was the view of the court in Scott v. Jackson, 93 Ill. App. 529, where it was remarked:
‘‘Even if the viewers exceed their authority in prescribing the exact kind of fence to. be built, yet if the owner notified does' not build any fence at all, and if the fence built by the other owner is a legal fence, and answers the purpose for which the fence is designed, and it is not shown it cost more than a legal fence of any other kind, the party building the fence can recover its cost of the other owner.” (Syl. ¶ 4.) ■
When viewers come to place a value on a fence, a share of which is to be charged to the adj oining owner, that “.which it is their duty to determine, is not what the materials are worth for any other purpose, and not, necessarily, what the materials and labor cost, but what, in the condition in which they find it, is its value
The fact that trees, suitable for telephone poles and for fence posts, had grown in the hedge did not give appellant the exclusive ownership of them, nor warrant the viewers in assessing the value of all to ap-pellees. These trees were sustained as much by the soil of appellees’ farm as by that of appellant. These are no more the property of appellant than if fruit, nut-bearing or ornamental trees had grown in the hedge or on the division line along a board fence. They grew on the common property of both and, necessarily, belong to both. So far as appears, the hedge, from end to end, was of the same general character, and there were as mahy trees suitable for poles and posts in the half assigned to appellant as in the half assigned to appellees. Manifestly the appellant received his share of the timber in so much of the hedge as constitutes no part of the fence and, hence, he has nó cause to complain. Trees so planted and nourished and sustained from the soil of appellees can not be treated as a part of the fence under the law, and the provision (Gen. Stat. 1868, ch. 40, § 23, Gen. Stat. 1909, § 3753) authorizing a person who has laid a fence on a division line to remove it is not applicable to trees and timber grown on the line as in this case. ■
The judgment of the district court is affirmed.