| Wis. | Jun 30, 1907
The following opinion was filed April 30, 1907:
The question presented is whether plaintiff, as tenant of the premises on which the damage was done by defendant’s sheep, is precluded from recovering for such damage under the provisions of sec. 1391, Stats. (1898). The first part of the section imposes the duty on “the respective occupants of adjoining lands, used and occupied for farming purposes,” of maintaining partition fences, unless they mutually otherwise agree. The section provides further :
“And owners of lands who do not maintain and keep in repair lawful partition fences shall not be entitled to recover any damages whatever for trespasses by the animals of owners of any adjoining lands with whom partition fences might have been maintained if such lands had been inclosed.”
Does the word “owners,” as used in the last part of the section, include persons designated by the word “occupants” in the preceding part ? Taking the context of the section, it is apparent that the first part enjoins a duty on occupants of adjoining lands, requiring the maintenance of partition fences between adjoining lands used and occupied for farming purposes, and the latter part precludes the recovery, in default thereof, of certain damages by the defaulting party. This naturally suggests that the two parts of the section were intended to be mutually inclusive in respect to the persons embraced in its provisions. The object sought to be attained
We also find that the word “owner,” as applied to land, is descriptive of various rights to and interests in land. On this subject the recent case of Merrill R. & L. Co. v. Merrill, 119 Wis. 249, 96 N. W. 686, contains a helpful discussion. Based on the authorities collected and on an examination of them as to the significance of the expressions “own” and “ownership,” it is there observed:
“As titles and rights to real property vary from the absolute and unqualified fee simple to that of the mere occupant, so the word ‘own,' or ‘ownership,’ varies in its significance. . . . Hence it is not surprising that we find the word in statutes given the widest variety of construction, usually guided in some measure by the objects sought to be accomplished in the particular instance. . . . Thus it appears very clearly that the word ‘owned’ is not a technical term, that it is a general expression to describe a great variety of interests, and may vary in significance, according to context and subject matter.”
See, also, 6 Words and Phrases, subjects Occupant and Oweee.
Applying these considerations to this statute, we are persuaded that the legislative intent was that all persons described as “occupants of adjoining lands, used and occupied for farming purposes,” and charged with the duty of maintaining partition fences, should be included within the class of persons described as “owners of land” who are precluded from recovering damages for trespasses by animals of owners of such adjoining lands with whom party fences might have been maintained. This would bring the plaintiff within the class comprehended by the last clause of this section, and would prevent him from recovering damages for the alleged trespasses of defendant’s sheep if he did not maintain and keep in repair a lawful partition fence between the premises he occupied as tenant of Mr. Peck and those of the de
By the Court. — Judgment affirmed.
A motion for a rehearing was denied June 20, 1907.