Stephens v. Shriver

The opinion of the Court was delivered by Lowrie, J. It is not at all necessary that partition fences should go to ruin because of the owners being in litigation about their lines; indeed, this could only add to their difficulties. If there he, in fact, a partition fence, the duty of contribution to maintain it exists, and neither party can excuse himself from this duty by alleging, whether sincerely or falsely, that the line is in dispute; and the law relating to fences contemplates no such mode of suspending the remedy which it provides. The jurisdiction of a justice of the peace to enforce contribution under the fence law is not [80] ousted by raising a question of title to the land. If the lines need correction, let it be made; and then it is easy to set the fence right. It seems that the parties did correct this line before the repair was made. We need not say what the law of the case would have been, had the plaintiff below been proceeding in the ordinary form of an action upon a contract; for this action commenced not thus, but according to the directions of the fence law. Judgment affirmed.