Briggeman v. Corrigan

198 P. 443, 60 Mont. 205, 1921 Mont. LEXIS 85

• Court: Montana Supreme Court
• Decided: May 23, 1921
• Docket: No. 4,387
• Status: Published

Opinion

MR. COMMISSIONER JACKSON

prepared the opinion for the court.

This action is to recover by contribution $92.35, alleged to be defendant’s share of the cost of building a partition fence built by plaintiff between the property of the parties. The complaint is in three counts, the first based on section 2087, Revised Codes, the second on sections 2085, 2086, and the third on section 4535. Defendant admits severalty ownership of the lands of both, and that, previous to the building of the fence, the lands were without partition; admits the lands were occupied by the respective owners; admits that plaintiff built the fence; and denies all other allegations.

[1] The record shows the ownership of the lands by the respective parties; that both occupied their premises in severalty, which were fenced as against all, except that the northern part of defendant’s land and section 15 of plaintiff’s land were without a partition fence, and were grazed by their stock in common; that plaintiff desired to have a partition fence between the lands, and thinks he delivered to defendant, on November 20, 1914, a notice dated November 25, 1914, in conformity with section 2087, Revised Codes; that on May 18, 1915, plaintiff started the construction of the partition fence, and built the whole thereof, completing the same some time early in June of the same year; that defendant has neglected to pay her proportionate share for the fence.

The trial was had to a jury, and at the conclusion of plaintiff’s case, the defendant moved for a nonsuit on all three counts. Motion was granted. Plaintiff appeals from the judgment and the order denying a new trial, assigning as error the sustaining of the motion for a nonsuit; the ruling that the testimony introduced did not show plaintiff was entitled to any recovery under any of the causes of action; the denial of the motion for a new trial.

Sections 2085, 2086 and 4535, Revised Codes, have not the slightest application under the proof, as the most cursory examination will show. The showing made by plaintiff from the record plainly entitled him to relief, if any, under section 2087, and none other. But, instead of allowing the defendant the six months as required by statute, the plaintiff, two days prior to the expiration of that time, takes things in his own hands and builds the fence. It is not material that the six-month period had elapsed prior to the time of its completion. Defendant was entitled to every day of the six months before default could be predicated, and before defendant could take advantage of section 2087.

[2] The right to sue under section 2087 is purely statutory. Without such a statute the right would not exist. “The rule is well settled in the country that whenever a statute grants a right which did not exist at common law, and prescribes the time within which the right must be exercised, the limitation thus imposed does not affect the remedy merely, but is of the essence of the right itself, and one who seeks to enforce such right must show affirmatively that he has brought his action within the time fixed by the statute.” (Dolenty v. Broadwater County, 45 Mont. 261, 122 Pac. 919; Eby v. City of Lewistown, 55 Mont. 113, 173 Pac. 1163.) And so, in this case, the six months’ time prescribed by the statute must have passed before the notifying party is entitled to act, and if he has acted before that, whether it be a day or a month, he has no cause of action, as the lapse of the entire time is of the essence of the right itself.

For the foregoing reasons, we recommend that the judgment and order appealed from be affirmed.

Per Curiam:

For the reasons given in the foregoing opinion, it is ordered that the judgment ,and order appealed from be affirmed.

'Affirmed.