Talbot v. Blacklege

22 Iowa 572

• Court: Supreme Court of Iowa
• Decided: July 9, 1867
• Status: Published

Opinion

Dillon, J.

1. Fences: fencefence ‘ viewers. I. Chapter 61 of the [Revision, in relation to fences, has converted some of the offices and duties of good neighborship, into legal obligations. Its substance and practical value are not to be destroyed by refinements and over-nice constructions. The fence viewers are made a local forum for the adjustment, upon the equitable principles recognized by the statute, of the differences between neighbors in relation to their fences. It is true that, the proceeding-being of a special character, the requirements of the statute must be followed. But the fence viewers are not usually men conversant with legal forms and modes of procedure; and this the legislature well knew, when it conferred upon them the power to arbitrate and decide controversies concerning partition fences. : When exercising powers granted, their proceedings are to be viewed -by the courts, as to-all matters of form, with at least the same tender and indulgent consideration which is extended to proceedings before justices of the peace.

2. — notice: statute construed. With these general considerations, we proceed to examine the objections made by the defendant, to a recovery against him. The first is, -that he had no legal notice of the meeting of the fence viewers. And here, defendant specifies two objections to the notice: First, that it should come from the fence viewers ; and, second, that it could not be given or served by the plaintiff. Bev., §§ 1527; 1529, 2814.

The statute provides “ that either party may apply to the fence-viewers, who, after due notice to each party, may inquire into the matter, and ' assign each his share thereof, and direct the time within which each shall erect or repair his share.” Bev., § 1529. The court below found from the evidence that, in fact, “ due notice ” was given to each party. The facts in relation to the notice, as shown by the evidence, are that the fence viewers, at the request of the plaintiff, met on the 5th day of April, 1865, at the house of the defendant, fdr the purpose of dividing the line fence and assigning to each his portion; that defendant, upon being asked by the fence viewers if he had received notice of their meeting at that time and place for the above purpose, answered that he'had, and made no objection to the same; that the fence viewers then went out and examined the premises, add, after consultation, made a division, and assigned to each tlie part of fence to be built by him, and then verbally notified each of their decision, and this decision was reduced to writing and recorded in the township records. The statute (§ 1529) does not, in terms, require a written notice, though properly it should be in writing, and proceed from the fence viewers. But in this case the defendant admitted to the fence viewers that he had been notified; made no objection to their action, and was present at their meeting and decision. We think that the object of the statute was here fairly met. The same remarks apply to the assignment of a portion of the fence that each was required to build. It is better that the assignment of the portion, and the direction as to time, required by section 1529, be put in writing, and a copy served upon each party to the controversy. But here the evidence fully shows, and the court finds, that each party was verbally notified of, and knew all about, the action and decision of the fence viewers in the premises; that their decision was reduced to writing on the same day, and duly recorded. Here, again, we hold that the object of the statute was fairly met. Under these circumstances we cannot hold the proceedings of the fence viewers void because they did not serve a copy of their decision on the defendant. Section 1529, which applies to the ease in hand, does not make such a step (however advisable it may be to take it) indispensable to the validity of their proceedings. If the defendant had not been present when the decision was' announced to him by the fence viewers, and if it had never been reduced to writing and recorded (under section 1536), a very different question would be presented.

3. — adjacent proprietors: evasion. There was an outside fence around the respective cultivated lands of the plaintiff and defendant, inclosing the same in common. The record shows that the defendant s action was either a direct evasion of the decision of the fence viewers, pr a positive refusal to comply with it. One of the adjacent proprietors 'cannot evade the law or defeat it, by purposely making his fence a few feet from, instead of on, the dividing line. Such a construction of the law would completely emasculate it. It would possess none of the essentials of a law operating upon the willing and unwilling alike. Such a construction would, as is well suggested in the appellant’s •argument, make the law, one which could only be enforced by the grace of one of the parties interested. It is stated by the appellant, in his written brief, that the court decided in the defendant’s favor on the broad ground that a man has a right, to do with his own property as he pleases, and that he cannot be legislatively compelled to build or contribute to build a division fence unless he is willing to do so. Defendant’s counsel make no such objection to the law, and do not ask an affirmance of the judgment on the ground that the law is unconstitutional. Acts similar to ours are very common in the different States, and have not, so far as we know, been considered obnoxious to the objection suggested; we shall therefore assume the validity of the law, leaving the question on this head, if any there be, until it is made and its decision urged.

4. — statute construed: notice. III. It is not found by the court below that the fence viewers gave the defendant notice of their meeting to ascertain the value of the fence, § 1530. The previous section (1529) expressly requires notice of the first meeting to assign each his share of the fence to be built. The next section omits to require such notice in relation to ascertaining the value of the fence. The statute which gives the mode and prescribes all the details of proceeding, does not provide for any such notice; to require it, would be a species of judicial legislation. The officers who administer the law, naturally follow it as it is written out in tbe statute. To require wbat tbe statute does not require, would oper-afce as a snare on parties and on men unlearned in the law, who are appointed to administer it. Express notice in one section (1529) being required, and in tbe other (1530) omitted, we must presume tbis was done by design. It is a proper case for tbe application of tbe maxim: “ expressio umus est exclusio alterius.” On tbis subject, upon full examination and comparison of tbe respective arguments, we adopt tbe rule and approve tbe reasoning of tbe Supreme Court of Connecticut (Edgerton v. Moore, 28 Conn., 600; Fox v. Beebe, 24 Id., 271) in preference to tbe doctrine of tbe Supreme Court . of Massachusetts, followed by tbe Supreme Court of Maine {Scott v. Dickenson, 14 Pick., 276; Harris v. Sturdevant, 29 Maine, 366). The conflicting views, and the arguments by which they are respectively supported, may be seen by a reference to tbe above cited cases; and it is unnecessary that we should further enlarge upon the subject.

Reversed.