Hazard v. Wolfram

Lyon, J. This action was brought before a justice of the peace to recover for building one half of a line fence be [195] tween lands alleged to Raye been occupied bj the parties respectively. The value of such fence had been ascertained by two fence viewers. The whole line fence was voluntarily built by the plaintiff, and he claims to recover under the provisions of sec. 8, ch. 17, R. S. From a judgment against him rendered by the justice, the defendant appealed to the circuit court, where the plaintiff again recovered; and he has now appealed to this court There is one insuperable obstacle in the way of a legal recovery in this action by the plaintiff. The evidence given on the trial in the circuit court shows conclusively that the land which it is alleged was occupied by the defendant was not enclosed with fences when the line fence was erected by the plaintiff, nor after that tima The statute provides, and this court has held, that it is only the occupants of lands enclosed with fences who are bound to maintain partition fences between their own and the next adjoining enclosures. R. S., ch. 17, sec. 2; Bechtel v. Neilson, 19 Wis., 49. The plaintiff should have been nonsuited. It is unnecessary to pass upon the other questions argued by counsel. By the Court. — The judgment of the circuit court is reversed, and a venire de novo awarded.