Pitzner v. Shinnick

| Wis. | Jan 15, 1877

Cole, J.

This case principally turns upon the following offer of evidence made by the counsel for the defendant on the trial: “ I offer to show that, previous to this accident, previous to the plaintiff going on to these premises to live, this fence between the plaintiff and defendant had been divided by virtue of a parol agreement between the defendant and ihe plaintiff’s landlord; and that the north half, and the place where the cattle got over onto the defendant’s land, as claimed by the plaintiff, belonged j to the plaintiff to repair and keep in order; and that the plaintiff knew of this division, having been informed of it by his landlord and by the defendant previous to the accident.” The testimony was objected to, and excluded by the court. Was this ruling correct?

The statute makes it the duty of the respective occupants of lands inclosed with fences to keep up and maintain partition fences between tbeir own and tbe next adjoining inclosures in equal shares, so long as both parties continue to improve the same. Sec. 2, ch. 17, R. S. A method is pointed out in the statute by which a division of a partition fence can he made bj fence-viewers. Then follows the 7th section, which reads: “ All divisions of fences made by fence-viewers, according to the provisions of this chapter, or which shall be made by owners of adjoining lands, in writing, witnessed by two witnesses, signed, sealed and acknowledged by the parties making the same, being recorded in the town clerk’s office, shall be good and valid against the parties thereto, their heirs and assigns.” The statute, it will he seen, provides only these two ways to make a division which shall be valid and effectual as against the parties thereto, their heirs and assigns; and the implication is very strong, that no other mode of division is of any effect. A parol agreement of the parties, adopted and acted upon, may be good until revoked on notice to the other party by the one dissatisfied with it; though that question does not arise here, and is not decided. .Manifestly the agreement contemplated by the statute is one in writing, executed with certain formalities, and recorded in the town clerk’s office. Such an agreement, under the statute, is in the nature of a covenant which runs with the land and binds subsequent proprietors. But will a mere parol division bind third persons who may become owners or lessees of the premises, and who have in no way recognized or acted upon the division? It seems to us that it will not. It was not proposed to show that the plaintiff, a tenant of the premises, had agreed to adopt the division made by his landlord with the defendant, or had in any way acted upon it. It is true, the defendant says in his testimony: “ I told him to do something about that fence; get some stuff and build that fence, and keep his cows at home; he said he would, and that he could get some rails from Mr. Ulm, when he had time; he always made some excuse.” But this fails to show a ratification or adoption of the parol division by the plaintiff, or any agreement to abide by it. So far as he was concerned, the offer was only to show that he knew of the division — had been info rmed of it by his landlord and by the defendant prior to the accident; but whether he was so informed when he went into possession of the premises, is a fact not included in the offer. Consequently, assuming that the parol division was obligatory upon the original parties until revoked, upon what principle can it be fairly claimed that the plaintiff was bound by it? The testimony offered was immaterial, and its exclusion was no error.

On this point we were referred to the following authorities to show that the offered testimony was competent and should have been received: Tupper v. Clark, 43 Vt., 200" court="Vt." date_filed="1870-11-15" href="https://app.midpage.ai/document/tupper-v-clark-6579126?utm_source=webapp" opinion_id="6579126">43 Vt., 200; York v. Davis, 11 N. H., 241; Glidden v. Towle, 31 id., 147; Guyer v. Stratton, 29 Conn., 421" court="Conn." date_filed="1861-02-15" href="https://app.midpage.ai/document/guyer-v-stratton-6577831?utm_source=webapp" opinion_id="6577831">29 Conn., 421; 1 Cowen’s Treat., 3d ed., pp. 420, 424. In Tupper v. Clark, one point decided, as stated in the head note, was this: “ When adjoining owners agree upon the portion of division fence each shall build, they are bound each to the other to keep up their respective portions, certainly un-< til one or the other repudiates the agreement.” In that case the referee found that the parties to the suit had recognized and adopted the division. In York v. Davis, there had been a parol partition of a fence, executed by the parties, which was attempted to he revoked by one of the parties on notice. But the court held that the division remained obligatory upon the parties until it was overruled by the action of the fence-viewers. In Glidden v. Towle, the court say, among other things: “ A parol agreement is not effectual, and although it may control the parties for the time being, yet it does not prevent the fence-viewers from entertaining jurisdiction. To do that, the agreement must be in writing; and that is the only agreement which the statute recognizes.” p. 163. Guyer v. Stratton arose under a statute where a division of the fence might be made by the parties in writing, etc., or the agreement might be made to appear by “ other sufficient evidence to show the same.” That statute would doubtless authorize a parol division. Judge Cowen, in his treatise, thinks that a parol agreement to divide a partition fence, which is carried into effect by an actual division, would not in New York be held invalid under the statute of frauds, p. 424. Rut it will be observed that none of these authorities goes to the extent of holding that a parol division would be obligatory and binding upon a third party who has come into possession of the premises as tenant or purchaser, and who has never assented to or ratified such division. See the cases of Rust v. Low, 6 Mass., 90" court="Mass." date_filed="1809-11-15" href="https://app.midpage.ai/document/rust-v-low-6403481?utm_source=webapp" opinion_id="6403481">6 Mass., 90; Wright v. Wright, 21 Conn., 329" court="Conn." date_filed="1851-07-15" href="https://app.midpage.ai/document/wright-v-wright-6576487?utm_source=webapp" opinion_id="6576487">21 Conn., 329.

In respect to the division fence in question, each party was under obligation to keep it in repair. The defendant, therefore, cannot say that the plaintiff, upon the facts, was guilty of negligence which contributed proximately to the injury, because he failed to keep up and maintain a sufficient division fence. Aylesworth v. Herrington, 17 Mich., 417" court="Mich." date_filed="1868-10-20" href="https://app.midpage.ai/document/aylesworth-v-herrington-6634237?utm_source=webapp" opinion_id="6634237">17 Mich., 417. The charge of the court upon that point, we think, was substantially correct.

The court likewise seems to have laid down the law properly in regard to contributory negligence. The jury were told that if, from the evidence, they found that the plaintiff’s cattle escaped upon the railroad track through an open gate in the railroad fence, which gate was opened and left open by the defendant, and were killed ©r injured on the railroad as a result of the said gate being so opened and left open, without fault on the part of the plaintiff, then there could be a recovery. But the jury were expressly charged that the plaintiff was held to the exercise of ordinary care and prudence in the manner in which he provided for the cattle being kept in his enclosure, with reference to the surroundings. It seems to us the question of contributory negligence was fairly submitted. 39 Wis., 129" court="Wis." date_filed="1875-08-15" href="https://app.midpage.ai/document/pitzner-v-shinnick-6601946?utm_source=webapp" opinion_id="6601946">39 Wis., 129.

By the Court. — The judgment of the circuit court is affirmed.