Miles v. Althoff

373 N.W.2d 655, 1985 Minn. App. LEXIS 4500
CourtCourt of Appeals of Minnesota
DecidedSeptember 3, 1985
DocketC6-85-300
StatusPublished
Cited by4 cases

This text of 373 N.W.2d 655 (Miles v. Althoff) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miles v. Althoff, 373 N.W.2d 655, 1985 Minn. App. LEXIS 4500 (Mich. Ct. App. 1985).

Opinions

OPINION

CRIPPEN, Judge.

Respondents brought this action to obtain compensation for erection of a partition fence. Fence viewers had ordered appellant to erect the fence, and he failed to do so. Appellant claimed that he had not received notice of a fence examination by town viewers. The trial court held that there was substantial compliance with the notice requirement, and ordered judgment for respondents. We reverse.

FACTS

Appellant and respondents own property in Crow Wing County, with a common boundary line. Respondent Miles was dissatisfied with the upkeep of that portion of the boundary line fence that appellant Al-thoff was to maintain. He expressed his complaints to the township board. The board authorized one of its members, Bill Tautges, to notify appellant that it was going to view the fence. Tautges did not testify at the trial, and appellant testified that the verbal notice that he. received consisted of a comment by Tautges in a bar or a store to the effect that appellant had a fence problem coming up, with some reference to a lawsuit. He denied being told that the board would view the fence, or that Tautges requested that appellant attend a board meeting to discuss the matter.

At some time prior to October 4, 1982, the three members of the board, acting as fence viewers, walked the fence line and examined the fence. They decided that the fence was not sufficient to hold cattle and had to be replaced. On October 4, 1982, the board sent Althoff a letter notifying him of his partition fence duties under Minn.Stat. § 344.03 (1982) and requesting that he put a line fence on his share by November 3, 1982.

Appellant testified that he did not contact the town board to object, although he did advise the clerk of his feelings on the matter. He did not respond because he thought the board did not complete a fence viewing and because he thought a conciliation court dispute between the landowners had disposed of the matter. He further stated that he maintained the fence property-

Respondent Miles determined from his own inspection of the property that appellant had not built the proposed fence. He informally notified the board by informing his brother-in-law, who was on the board, and another board member, that he was going to repair the fence. The board did not object.

Respondent began building appellant’s portion of the fence in June 1983. He did not contact appellant to inform him that he was doing so. The fence was completed shortly thereafter; Althoff testified that he discovered the new fence on about July 1.

After they were notified the fence work was done, members of the board viewed the completed fence. To respondent’s knowledge, the board did not give appellant any notice that they were viewing the fence after its completion.

Respondent Miles attended a meeting with the board to discuss his bill, but he cannot remember the exact date of the meeting. On August 1, 1983, the board sent Althoff a bill of $2,068.48 for the [657]*657expense of erecting the fence. The accompanying letter notified appellant that the bill was presented to him under Minn.Stat. § 344.05 (1982). It advised him that if he had any questions, he should appear before the board at the next town meeting on September 6. Finally, it advised him that he had 60 days to pay the bill without any consequences. Appellant attended the meeting and objected.

Appellant never paid the bill, and respondent brought this action to obtain payment. In the suit, respondent asked for appellant’s share of fence repairs, the penalty under Minn.Stat. § 344.05, which entitled respondent to double the amount expended, and the $45 fence examining fee, for a total of $4,181.96. The appellant defended by stating the repairs were not made pursuant to Minn.Stat. ch. 344 and that proper notice was not given to him; he counterclaimed for damages for trespass.

After a bench trial, the court found that there was “substantial compliance in the notification” of appellant of the viewing. The court found that appellant was properly notified of a direction to construct a fence and of the cost of the completed fence, and respondent was awarded his judgment. This appeal followed.

ISSUES

1. Was there sufficient compliance with the notice requirement of Minn.Stat. § 344.04 prior to the fence examination?

2. Did the fence viewers have jurisdiction over the proceedings in the absence of proper notice to appellant?

ANALYSIS

1. Minn.Stat. § 344.04 (1982) provides that after an aggrieved party complains to the fence viewers that a partition fence is in need of repair, the fence viewers shall examine such fence “after notice to the parties.” Id. Appellant contends he did not receive this notice. The trial court found “substantial compliance” in the notification of appellant of the viewing. Findings of the trial court must be affirmed unless clearly erroneous. Minn.R.Civ.P. 52.01.

Bill Tautges, the member of the town board who was authorized to give notice to appellant, did not testify at the trial. Daniel Neeser, the board member who did testify, was not sure whether, at the time Tautges was to give appellant notice, a specific time and date had been set to view the fence. Finally, appellant testified that he did remember talking to Tautges in a bar or store, but that the most he remembered of the “notice” was a reference by Tautges to a “fence problem” and a lawsuit. There was no evidence presented to the court that would allow it to conclude that appellant had been notified of the viewing or of the time or place of the viewing.

A notice must be sufficiently complete to furnish important information.

[Wjhere a statute requiring notice does not set further guidelines for the form that notice must take, the statute has been satisfied where the notice is “sufficient to apprise one of ordinary intelligence” of the nature and subject of the hearing.

City of Minneapolis v. Wurtele, 291 N.W.2d 386, 392 (Minn.1980) (citing 13 E. McQuillan, Municipal Corporations § 37.-42 (3d ed. 1971)). There is no evidence here that the appellant was given any notice as to either the nature or the subject of the viewing.

We do not hold here that written notice is required, although it would be advisable. See Booth’s Town and City Manual 617 (1980) (sample of an appropriate form). We note that in Minn.Stat. § 344.04, the statute specifically provides that notice to the owner directing him to repair or replace the fence must be in writing, but that there is no such requirement for written notice of the viewing.

Respondents failed to meet their burden to prove that notice was given as required by statute. There is no evidence to sustain a finding of substantial compliance with the statutory notice requirement.

[658]*6582. What is the effect of the lack of notice? In McClay v. Clark, 42 Minn. 363, 44 N.W. 255 (1890), where no notice of a final appraisement was given, the supreme court held:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lanpher v. Nygard
829 N.W.2d 438 (Court of Appeals of Minnesota, 2013)
Rice v. Kringler
517 N.W.2d 606 (Court of Appeals of Minnesota, 1994)
Commonwealth Capital Corp. v. Federal Deposit Insurance Corp.
400 N.W.2d 787 (Court of Appeals of Minnesota, 1987)
Miles v. Althoff
373 N.W.2d 655 (Court of Appeals of Minnesota, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
373 N.W.2d 655, 1985 Minn. App. LEXIS 4500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miles-v-althoff-minnctapp-1985.