Barrett v. Dolan

Seevers, J. 1. Animals : trespassing: township by mustebe:notifled' I. The theory of the defendant is that certain cattle, belonging to an unknown owner, were trespassing on his premises, that he distrained or took them *■ into his possession, and caused his damages to ^e assessed by the township trustees. Upon the objection of the plaintiff, the court refused to permit evidence as to what the trustees did to be introduced as evidence, on the ground that they had not been legally convoked or called together. It is provided by statute that, when stock has been distrained, the person doing so “ shall, within twenty-four hours thereafter, notify the township trustees to be and appear upon the premises to view and assess the damages. * * * And when two or more trustees have assembled they shall proceed to view and assess the damages, and the amount to be paid for keeping said stock.” Code, § 1454. There were three trustees, and one of them was not notified of the meeting, although he was at his residence in the township, and he took no part in the assessment of the damages. Such assessment was made by the other two trustees; and we are required to determine whether it was legally made or void. The statute in express terms requires the trustees to be notified of the meeting. This .means all, not a part of them. Such a notice is of a jurisdictional character. ' Until it is given, there is no power to act. It is well settled, we think, both on principle and authority, that, when power is conferred on three or more persons to do an act, and notice to such persons is required, all must be notified, although, when 96 duly notified, a majority may act. People v. Batchelor, 22. N. Y., 128 ; Harding v. Vandewater,40 Cal., 77 ; Wiggin v. Freewill Baptist Church, 8 Metc., 301 ; Smyth v. Darley, 2 H. L. Cas., 769. It may be that, when one of such persons is absent so that he cannot be notified, a different rule may px’evail. The court did not err in refusing to admit as evidence the assessment of damages made as above stated. 2. fences: fences : division fence : obligation to maintain : herd law. II. The plaintiff and defendant occupied adjoining farms. In 1874 the herd law was adopted, and has been in force since that time. In 1877, at the x’equest of the ± defendant, the township trustees met and apportioned the division fence between him and the plaintiff, and a fence was erected in accordance with such apportionment. In 1884 the fence had become dilapidated, and needed repairing. The trustees were called together at the instance of the plaintiff, as we understand, to make some ox’der as to repaii-ing it. The defendant declined to repair that part of the fence which had been previously assigned to him, and caused the plaintiff to be notified that he did not want such a fence, and that the plaintiff could repair it if he desired to do so. To some extent the plaintiff did so. The theory of the plaintiff" is that the cattle were lawfully upon his owix premises, and escaped therefron^ because that portion of the divisioix feixee which it was the defendant’s duty to erect and keep in repair, as directed by the txuxstees in 1877, was out of repair, and thex-efore the defendant could not lawfully distx’ain the cattle. The court, in substaxxee, so instructed the jury, and we are required to deternxine whether it erred ixx this respect. The apportionment was xnade after the adoption of the herd law at the instance of the defexxdant, and both parties acquiesced therein and erected the fence. The defendaixt cannot now, upon his own motion, relieve himself from the obligation thus imposed. Until so relieved by the plaintiff, or possibly by the action of the trustees, it is his duty to maintain the portion of the fenee so allotted to him. The fact that the 97 plaintiff voluntarily to some extent did wliat the defendant, was obligated to do, cannot have the effect to relieve the latter. "We think the instructions of the court are right, and that the judgment must be Affirmed.