Lead Opinion

Action by appellants to enjoin appellees from the collection of an assessment against appellants' real estate for building a fence by appellees on the line between the lands of 1. appellants and appellee Kelley. Appellees' demurrer to the amended complaint was sustained by the court, and this action of the court is assigned by appellants as error. It appears by the amended complaint that appellees, the owner of the adjoining land, trustee, auditor, and successive treasurers, have respectively taken the required steps to build the partition fence, and to create the assessment lien under the statute, but appellants contend, and have averred in their complaint, that their land has always been in the common, unenclosed, that the fence constructed does not complete an enclosure of appellants' land, that the same will not be of any use, value or service to them, and that it will be of service only to appellee Kelley. Such averments are not sufficient to make the amended complaint good against appellees' demurrer. Section 6 of the partition fence law, Acts 1911 pp. 515, 518, § 7924 Burns 1926, expressly provides that, "This act shall be liberally construed in favor of the objects and purposes for which it is enacted and shall apply to all lands whether enclosed or unenclosed, cultivated or uncultivated, wild or wood lot."

Judgment affirmed.

Addendum

ON PETITION FOR REHEARING. On rehearing, appellant earnestly contends that a statute of a state providing for one landowner to compel his adjoining neighbor to contribute to the building of a fence on the 2. line between their lands for the exclusive benefit of another would be unconstitutional. That appellant has *Page 305 thereby presented no constitutional question, see, In rePetition of Pittsburgh, etc., R. Co. (1897), 147 Ind. 697, 47 N.E. 151; Durham v. State, ex rel. (1892), 133 Ind. 422, 31 N.E. 787; Hobbs v. Gibson School Tp. (1924), 195 Ind. 1, 144 N.E. 527; Ewbank's Manual, (2d ed.) § 62a.

Petition for rehearing denied.