Anderson v. Cox

6 N.W. 895, 54 Iowa 578

Opinion

Adams, Oh. J.

1. FENCES: partition tiais oí. The question certified is dn these words: “ Whether a party who fences across a public alley in a village, connecting with and using the fence on the other ° ° side by doing so makes it a partition fence, and can be made to pay for the use of the same, and whether the township trustees had any jurisdiction in the matter.”

The fence viewers have jurisdiction only when a controversy arises between the respective owners of land about partition fences. Code § 1492. Peschongs v. Mueller, 50 Iowa, 237.

The plaintiff’s land did not join the defendant’s. The fence, then, was not a partition fence by reason of its location. Could it be such by reason of its use? We think not. The alley was liable to be opened at any time.

If we regard it as a partition fence, the defendant was liable not simply to pay for past use (which he has done, and as a neighbor perhaps ought to do) but to contribute to the erection and maintenance of it. But it is not claimed that the defendant was .under such obligation, nor could he be, because the alley was liable to be opened at any time, and he would then be deprived of the use. . -

■ We conclude, then, that the fence was not a partition fence within the meaning of the statute; and if we are correct in this the fence vie vers had no jurisdiction in the matter, and the defendant could not properly be charged with costs for their services.

Affirmed.