32 Mo. App. 542 | Mo. Ct. App. | 1888
Lead Opinion
— The rights of the parties in this case depend upon the construction of section 5661, Revised Statutes. That section is as follows: “Every person owning a part of a division fence shall keep the same in good repair, according to the requirements of this chapter, and, upon neglect or refusal to do so, shall be liable in double damages to the party injured thereby.” Sections 5651 to 5664, Revised Statutes, both inclusive, were first enacted in 1877, and appear in the original act in the same order as respectively sections 1 to 14. They are, so far as they relate to one another, to be construed together. By section 5651 it is provided that “all fields and inclosures shall be enclosed by hedge or with a fence.” By section 5652 is prescribed what shall be deemed a sufficient hedge or fence. The other sections of the statute to which it is necessary to refer are as follows : “ Sec. 5656 : Whenever the fence of any owner of real estate now erected or constructed, or which shall be hereafter erected or constructed, the same being a lawful fence, as defined by sections five thousand six hundred and fifty-one and five thousand six hundred and fifty-two, serves to inclose the land of another or which shall become a part of the fence inclosing the lands of another, on demand made by the person ■owning such fence, such other person shall pay the owner ■one-half the value of so much thereof as serves to inclose his land, and upon such payment shall own an undivided half of such fence, provided the person thus benefitted shall have the option to build, within eight months from date of such demand, a lawful fence half the distance along the line covered by the above-mentioned fence. The demand shall be made in writing and served on the party interested, his agent or attorney, or left with some member of the family over fourteen years of age, at the usual place of abode ; if the party notified fails to comply with the demand within the specified time, the
What is the" meaning of the words with which section 5661 begins, “ Every person owning a part of a division fence” 1 In determining this question we must treat and consider that section as a part of the statute, this for the reason that that section is a part of the statute. In construing any part of a statute the entire statute must be considered together. Cooley’s Const. Lim. 70. Either the words mentioned are to be confined to such persons as may own a part of a division fence by virtue and in pursuance of the provisions of section 5659, or they are not to be so confined. If the words are not to be thus limited in their meaning and effect, they cannot be limited at all and they must be given the broad and general meaning natural to them. There can be no middle ground. . There is nothing in the entire statute to enable us to draw a dividing line. It would seem that as a matter of course the words would be thus
By section 5659 it is. provided that if the parties cannot agree as to the part of the division fence which each is to have and keep in repair, a justice of the peace of the township may appoint disinterested householders of the township to proceed in the manner provided by the statute and designate the portion to be kept in repair by each party. It is apparent at a glance, and too plain to be questioned, that if in any given case the justice of the peace would not under the facts be authorized to appoint the householders to proceed and designate the portion of the fence to be kept in repair by each of the parties, where the parties had failed to agree in relation thereto, then an agreement between the parties under the same- facts would be an agreement not under the statute but outside of the statute. The statute provides, for a partition of the fence in case the parties fail to agree. The statutory partition takes the place of the agreement. The one is equal to the other. Wherever one can be made under the statute the other can be made, but wherever one is not authorized by the statute neither is'the other. The partition of a division fence provided by section 5659 is of such a fence and of such a fence only as that for ascertaining and collecting the value of one-half of which sections 5656, 5657 and 5658 provide. In no case can there be a partition under the statute, o'f a division fence, unless also under the statute the value of one-half of the fence can be determined and collected. The sections last named and section 5659 so clearly, plainly and unmistakably refer to the same kind of a division fence, that the statement of the fact needs no argument in its support.
Section 5656 provides only for a case where one owns the entire division fence and the fence is a lawful fence as defined by section 5652. Section 5656 has to do only with the case where “the fence of any owner of real estate now erected or constructed, or which shall hereafter be erected or constructed, the same being a
Judgment reversed and cause remanded.
Rehearing
On rehearing."
— The argument or reasoning of Judge Hall is to sustain a conclusion embodied in three propositions stated by him, viz., first, that “a division fence erected jointly by the adjoining land-owners is not within the statute;” second, that “an agreement between such dwners in relation to the erection of a division fence is not within the statute;” third, that “an agreement as to the partition of a division fence jointly erected and owned by the land-owners is not within the statute.” I am unwilling to concur in the first and third propositions. They involve the holding, and it is, in effect, so stated, that there can be a division fence only where the adjoining owner owns entire an already existing fence and that this fence already in existence, under the entire ownership of one proprietor,
By the proviso in section 5656, it is enacted that the adjoining owner may, at his option, build one-half the fence instead of paying for one-half of that already erected. I do not see why they may not build each his half in the first instance, or build jointly, and in either case divide it for repairs and have a statutory division fence. This is the reason of the matter and ought to prevail, unless the language of the statute is incompatible with such construction, and I think it is not. That the absolute letter of section 5656 need not be followed, is apparent. It provides that pay for one-half the fence shall be demanded by the owner, yet, of course, if the adjoining proprietor paid for one-lialf without demand, it would be a statutory division fence. So it provides that the adjoining proprietor shall pay for one-half the fence, yet it would not destroy the character of the fence if he did not pay but accepted of it as a gift. I only refer to this to show that we need not stand out for the very letter of this statute.
I agree to the second proposition, that an agreement between such owners for the erection of a division fence is not within the statute, for this is only a contract to erect a fence, and is not provided for nor contemplated by the statute. And for this reason I think the third instruction should have been given, viz.: “3. If the jury believe from the evidence that certain cattle, on or
For this reason'the judgment will be reversed and the cause remanded.