Hill v. Tohill

Mr. Chibe Justice Scott delivered the opinion of the court : This controversy arose over a hedge which is part of a division fence and which the .fence viewers.set off .to appellant to maintain. The question is, may he rightfully remove it and construct a lawful fence of different material in its place without the consent of appellee, the adjoining land owner? The hedge occupies more ground than would be occupied by the proposed fence, and whether it is sufficient to turn stock is one of the questions which was controverted in the circuit court. The fence viewers acted under section 7 of chapter 54, Hurd’s Revised Statutes of 1905, which provides: “If disputes arise bétween the owners of adjoining lands, concerning the proportion of fence to be made or maintained by either of them, such dispute shall be settled by any two of the fence viewers of the town or precinct, as the case may be, and in such cases it shall be the duty of the two fence viewers to distinctly mark and define the proportion of the fence to be made or maintained by each.” Under a statute which, in substance, cannot be distinguished from the one above set out, the Supreme Court of Massachusetts has held “that the part of the fence assigned by fence viewers to one owner to keep in repair was his property, so far, at least, that the removal of it for the purpose of replacing it with another fence of a different kind could not make him a trespasser,” and that the owner to whom a portion of the fence has been so assigned has the right to remove it_for the purpose of repairing it or replacing it by some other lawful partition fence. Burrell v. Burrell, 11 Mass. 294; Ropes v. Flint, 182 id. 473. Adopting the view of the Massachusetts court, we conclude that after the fence viewers had assigned the hedge fence to appellant to maintain he had the right to remove the hedge and substitute therefor a lawful fence of other material without the consent of the adjoining land owner. As to the statute so construed, appellee contends .that as the hedge was set out and maintained by his predecessors in title, and that as he succeeded to such ownership thereof as they enjoyed, the legislature could not, without violating that provision of the constitution which forbids the taking of private property without due process of law, enact a statute which by its terms authorized the fence viewers to assign the hedge fence to appellant to maintain, when such assignment would wholly deprive appellee of all right of control over the fence so assigned. In McKeever v. Jenks, 59 Iowa, 300, it was held that an Iowa statute vesting in fence viewers powers similar to those conferred upon such officers by section 7, supra, was not properly subject to the constitutional objection here urged. Other authorities of the same general tenor are Davis v. Board of County Comrs. 65 Minn. 310; editor’s note to Myers v. Dodd, 9 Ind. 290, found at page 629, volume 68, American Decisions; Gilson v. Munson, 114 Mich. 671; Tomlinson v. Bainaka, 163 Ind. 112; and Coster v. Tide Water Co. 18 N. J. Eq. 54. There are authorities which sustain appellee’s position, but we deem it unnecessary to discuss them in view of certain historical considerations hereinafter detailed, affecting section 7, supra. This question does not seem to have been heretofore discussed in any of the opinions of this court. It is, however, apparent from language found in our Reports relating to the statute here in question and to other statutes conferring like powers upon fence viewers, and from the^fact that this identical statute has been enforced by this court in at least one case, that this court has long regarded this enactment as valid. Ketchum v. Stolp, 15 Ill. 341; McCormick v. Tate, 20 id. 334; Hale v. Andrews, 75 id. 252; Thompson v. Bulson, 78 id. 277; D’Arcy v. Miller, 86 id. 102. Various provisions of chapter 54, supra, to which the objection now made applies with as great force as it does to section 7, supra, have been regarded as enforcible by the Appellate Courts of the State. Boyd v. Lammert 18 Ill. App. 632; Deimel v. Obert, 20 id. 557; Campbell v. Feyerabend, 53 id. 225; Scott v. Jackson, 93 id. 529. It is to be observed that this section, except for a mere verbal variance, was first enacted in 1857, (Sess. Laws of 1857, p. 159,) and has been continuously in force since that time, and if violative of the constitution of 1870 it also contravened the constitution of 1848. To sustain the appellee’s contention now would be to unsettle that which has for well nigh fifty years been tacitly held by the courts of the State to be the law, and would be to destroy property rights which have grown up and been established on the theory that this statute was enforcible. This law having been regarded as valid and enforced without question as to its constitutionality by this court and other courts of the State since 1857, we would not now be justified in holding it to be unconstitutional unless its invalidity was clear, certain and beyond question. ( Cooley’s Const. Lim.—7th ed.—103,104; Story on the Constitution, sec. 405; Martin v. Hunter’s Lessees, 1 Wheat. 304; Bank v. Halstead, 10 id. 51; Stuart v. Laird, 1 Cranch, 299; Swift v. Calnan, 102 Iowa, 206; State v. Blake, 36 N. J. L. 442; Bingham v. Miller, 17 Ohio, 445.) While the question under discussion might in the first instance have presented some difficulty, the statute here challenged must now be regarded as a proper exercise of the police power. Section 3 of chapter 54, supra, after requiring that each of the adjoining land owners shall make and maintain a just proportion of the division fence, and that if such fence be a hedge fence it shall be cut back or trimmed" at certain intervals, contains a proviso to the effect “.that the provisions of this section shall not apply to any hedge fence protecting either an orchard or buildings or wind-break, not to exceed thirty rods.” The appellee contends that thirty rods of this hedge fall within that proviso and consequently cannot be lawfully removed or trimmed or cut back without his consent. It is apparent that at the time this suit was commenced the hedge was not within .that proviso, and its terms therefore have no application. The fact that appellee may have then intended at some time in the future to locate an orchard and buildings at a place where the hedge would, if still standing, protect them, is without significance. It is apparent from the words of the proviso that it is intended to apply only to a hedge which is actually within the terms of the exception to the statute at the time the proviso is invoked, and not to a hedge which is not then, but may at some future time be, within such terms. Appellee’s next proposition is that, irrespective of the statute, a court of equity should interfere by injunction to restrain the removal of this hedge, for the reason that he derives special benefit, enjoyment or advantage from it beyond its actual value as a fence. This is based on the fact that the hedge, if permitted to remain as it is, will afford protection for the orchard which appellee, at the time of filing the original bill, intended thereafter to plant and the buildings which he intended thereafter to erect. The proof shows that at the time the original bill was filed the only benefit, enjoyment or advantage which the appellee derived from this hedge was not greater than .that which he would derive from any lawful division fence. The only special value which he claimed was one which did not then exist but which he averred would exist in the future. It follows, therefore, .that the proposition last mentioned, even if it be in accord with the law of this State, as to which we express no opinion, will not control. The decree of the circuit court will be reversed and the cause will be remanded, with directions to enter a decree dissolving the injunction and dismissing the bill for want of equity. Reversed and remanded, with directions.