52 Tenn. 473 | Tenn. | 1871
delivered the opinion of the Court.
The parties own adjoining lots in the town of Bolivar, and the object of the proceeding is to compel defendant, under the provisions of the Code, ss. 1682-1694, to pay one-half of the expenses incurred by the plaintiff in causing to be built a partition or division fence on their dividing line. The parties failing to agree, an order was issued by a Justice to three freeholders to examine the fence and report to him, under oath, the amount to be paid to the owner erecting it, pursuant to the Code, s. 1688. Under the agreement as to notice contained in the record, it may be assumed that the freeholders proceeded to examine the fence and to make their report to the Justice, as required by section 1689. They reported that the fence was
Several questions have been presented in argument before this Court.
1. It is insisted that the action of the Justice is ministerial or clerical only in such eases; that the decision of the commissioners was final, and that no appeal to the Circuit Court was contemplated by or could be granted under the statute. We do not concur in this view. The Code, s. 3140, gives the right of appeal to any person dissatisfied with the judgment of a Justice in a civil action. Section 4177 provides that no civil case, originating before a Justice of the Peace and carried to a higher Court, shall be dismissed for any informality whatever, but shall be tried on its merits. One of the earliest definitions of an action was, that it is “the lawful demand of one’s rights:” 3 Sharsw. Bl. Com., 116, m. The Code, in defining the jurisdiction of Justices, and after enumerating the various special matters to which it shall extend, declares that it shall extend “to all other cases where jurisdiction is, or may be, expressly given by law:” See section 4123, sub-sec. 10. The particular mode
2. His Honor charged the jury that “if they found the partition fence, built by the plaintiff, was within the corporate limits of Bolivar, they would find for the defendant.” Although the amount in controversy, in this case, is small, the question arising upon his Honor’s charge is an important one. In the chapter of the Code which relates to enclosures and partition fences, it is declared that “partition fences, within the meaning of this chapter, are fences erected on the line between lands owned' by different persons.” If the word “lands” is here used in its largest signification, there can be no question as to its embracing town lots as wTell as lands situated elsewhere. It was, certainly, not the intention of the Legislature in the use of the word lands, to employ it in its full legal signification, which comprehends not only the soil, but any building upon it, and “includes not only the face of the earth but every thing under it or over it:” 2 Sharsw. Bl., 18, marg. The meaning is to be ascertained by looking to the preceding sections of the Code, which embody the provisions of the act of 1807, c. 8, Car. & Nich., 332. Section 1682, which is the first
3. It was shown upon the trial, that the plaintiff agreed with the son and agent of the defendant, that if he would extend the fence to another part