Rose v. Linderman

Hooker, J. The parties to this action own and occupy adjoining lands. Having a controversy over the fence between their respective premises, the defendant caused a view to be taken of the same by the fence viewers, and 50 rods of the line was apportioned to him, and 30 rods to the plaintiff. The defendant had or thereupon built a stump fence; the roots of the stumps resting upon his land, and the trunk portion of the stumps resting upon the land of the plaintiff. The undisputed evidence shows that the fence occupied a strip of land about 5 to 5£ feet wide, and that, while the partition line was at the ends about in the middle of the fence, for the most part of the way it was two-thirds or more upon the premises of the plaintiff. He brought this action of ejectment for the land so used, but suffered defeat; the court directing a verdict for defendant, upon the grounds that a stump fence was a lawful fence, that defendant had the right to use an equal amount of land on each side of the line for the fence, and that the land used was substantially equal. It is upon the correctness of these rulings, and the further [374] point — made first in this court — that ejectment will not lie in such a case, that the defendant relies for an affirmance of the judgment. The statute relied upon in the case (1 Comp. Laws, § 3415) provides: “All fences four and one-half feet high, and in good repair, consisting of rails, timber, boards, or stone walls, or any combination thereof, and all brooks, rivers, ponds, creeks, ditches and hedges, or other things which shall be considered equivalent thereto, in the judgment of the fence viewers within whose jurisdiction the same may be, shall be deemed legal and sufficient fences.” We think that the term “ fence ” has a well-understood meaning, and that an ordinary worm or Virginia fence is a fence that owners of farm lands may lawfully build, and which would require the use of a strip of land from three to five feet wide. We are also of the opinion that a stump fence, built in accordance with the common practice of a country or locality, would be one that might be lawfully built, and a neighbor could not complain merely upon the ground that such a fence was not within the statute, if it should meet the approval of the fence viewers. We understand that the plaintiff has signified that he had no objection to this fence, provided it were wholly upon defendant’s ground. His counsel contend that the respective portions of all division fences should be placed wholly upon the land of the persons whose duty it is to maintain them, but that at all events such persons could not lawfully place more than one-half of such fences upon their neighbor’s land. We are of the opinion that this contention cannot be sustained. Not only is the right to build one-half upon the land of the adjoining proprietor indicated in Newell v. Hill, 2 Metc. (Mass.) 180, which plaintiff’s counsel call the “leading case in the country,” but the same rule is indicated in New York, from which State Michigan copied the main body of her statutes (Ferris v. Van Buskirk, 18 Barb. [N. Y. ] 397; Warren v. Sabin, 1 Lans. [N. [375] Y. ] 79), where it was declared that “ under the statute it is clear upon principle and authority that the owners are bound to erect and maintain a line or division fence, and should make it equally on the lands of each.” Tyler in his work on Fences, p. 362, says: ‘ ‘ But, when the legislature speaks of fences, and division fences, some idea of what a fence is is at once suggested to the mind. There is no statute, for example, authorizing the erection of a crooked or Virginia fence upon the line as a division fence between adjoining proprietors, and yet, as a matter of fact, a large proportion of all the division fences between adjoining farms in the State of New York are the worm or Virginia fence, leaving half the corners upon the land on one side of the mathematical line, and the other half upon the other side. This kind of fence has been built as a division fence in the State, time out of mind, so that it has become a part of the common law of the State that adjoining owners of farms may erect such fences as division fences, occupying the necessary quantity of land upon each side of the mathematical line; and such fence is a fence, in contemplation of law, upon the line between the adjoining farms.” See, also, 19 Cyc. pp. 479, and notes 27 and 31, 480, and note 34. In Higgins v. Kingsley, 82 Hun (N. Y.), 150, it was held that where posts were set equally on both sides of a line, but wire netting was attached to rails set into the sides of the posts on one of the lots, the fence was not equally on each lot. This was a division fence. See, also, Kelly v. Donnelly, 19 Pa. Super. Ct. 456, citing other cases. See, also, Sparhawk v. Twichell, 1 Allen (Mass.), 450, and 12 Am. & Eng. Enc. Law (2d Ed.), p. 1052. We conclude, then, that a partition fence may be built upon the line and may occupy equal portions of land from the respective proprietors; that, while an unequal occupancy does not necessarily deprive the structure of the character of a partition fence, a party is entitled to relief if the fence occupies a disproportionate share of his land. We are also of the opinion that there was testimony in this record justifying the inference that the stump fence was a lawful and proper fence, so far as [376] its character was concerned, and that the defendant had a right to build it upon the line. We think that there was testimony tending to show that an improper use of plaintiff’s land was made by reason of an inequality in the amount used. The only other question relates to the nature of the remedy; it being said that ejectment will not lie, because the holding is not adverse, under some decisions that hold that title by adverse possession cannot be obtained by the maintenance of a partition fence off from the correct line, for the reason that the occupancy is permissive. We have no doubt that, irrespective of the question of acquiring title by occupancy, ejectment should lie for the unlawful occupancy of land, even if only for the purpose of building and maintaining a fence upon it. The case of Higgins v. Kingsley involved a division fence, and the action one at law for the recovery of a strip of land % inches wide by 105 feet long. Many times the question is disposed of in equity by injunction bill. We do not mean to decide that this question is open on this record (see Kennedy v. Owen, 131 Mass. 431), having discussed the right to the remedy by ejectment instead, because the latter question would otherwise be open upon another trial. The judgment is reversed, and a new trial ordered. McAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.