Lease v. Vance

"Wright, J. In our opinion, the application of one plain principle to the facts of this case must result in its reversal. And that is, that when a statute creates a liability and gives a right not known to the common law, — such statute at the same time giving a specific mode for the assertion of the right — that mode and that alone must be pursued. Now, defendant’s obligation to erect, maintain or contribute to this partition fence, in the absence of prescription or agreement, rests entirely on statute, and is unknown to the common law. Chapter 61 of the Eevision, on the subject of fences, creates this obligation, and prescribes the method of settling all controversies in relation thereto, to wit: by applying to the fence viewers. These viewers are made a special tribunal for the adjudication of the rights of adjoining owners, and the statute (assuming plaintiff’s fence to be sufficiently on or near the division line) covers the very case made by plaintiff’s petition. There is no agreement shown by the facts found, upon which plaintiff can recover, nor any thing like prescription set up or established ; nor are there any circumstances to take the case out of the rule stated. It is sufficient to cite the cases following: Cole v. City of Muscatine, 14 Iowa, 296; Macklot v. City of Davenport, 17 id. 379. The cases to which appellee refers (Schnare v. Gehman, 9 Iowa, 283; Talbot v. Blacklege, 22 ib. 572) do not touch the question here ruled. In the first, the fence for which plaintiff sued was built after notice by defendant, an adjoining proprietor, and who already had a fence, to [512] build the same; and the facts were such, that the court held that an agreement to pay might be inferred. In the second, the action of the fence viewers was assailed, and the questions made relate to the validity of their proceedings. That. ease favors, rather than otherwise, the order now made that this judgment must be Reversed.