Maudlin v. Hanscombe

12 Colo. 204

• Court: Supreme Court of Colorado
• Decided: December 15, 1888
• Status: Published

Opinion

Per Curiam.

This action was based upon the following provisions of chapter 39, General Statutes (since repealed), viz.:

“Section 1. Where the lands of two persons join, and both parties shall occupy the land, it shall be the duty of each party to build one-half of the line fence.

“Section 2. Where one party shall have already erected a fence upon any land between himself and any other party, and the other party wishes to occupy the land adjoining, it shall be his duty to either build one-half of said fence or pay the party owning said fence one-half of its cash value.”

Counsel for plaintiff in error rely upon two propositions in support of their demand for a reversal: First, that the word “ occupy,” as used in these sections, means actual residence upon the land; second, that the building and maintenance by plaintiff in error of the fence upon his own land was a substantial compliance with the provisions of the statute relating to line fences. We think neither of these positions well taken. The occupation required by the statute need be such occupation only as will make it necessary or advantageous for the purpose thereof to fence the land, whether its owner reside thereon or not. The statute provides for line fences, and, in the absence of an agreement that it should be so treated, the fence of defendant below cannot be regarded as built in compliance with the provisions thereof.

Having disposed of the specific objections presented, we shall refrain from suggesting or arguing others, and affirm the judgment.

Judgment affirmed.

Affirmed.