Aylesworth v. Herrington

• Decision Date: 20 October 1868
• Citation: 17 Mich. 417
• Court: Michigan Supreme Court
• Parties: Daniel Aylesworth v. Delia Herrington et al

17 Mich. 417

Daniel Aylesworth v. Delia Herrington et al

Supreme Court of Michigan

October 20, 1868

Heard October 16, 1868 [Syllabus Material] [Syllabus Material]

Error to Washtenaw circuit.

This was an action of trespass brought to recover damages alleged to have been committed by the cattle of defendant upon plaintiff's premises.

Judgment was rendered in favor of plaintiff.

The facts are stated in the opinion.

Judgment reversed, with costs, and a new trial ordered.

S. E. Engle, for plaintiff in error:

At common law no person is bound to fence against the beasts of another. The owners of beasts are liable for any damage done by them on the lands of another, and can have no defense to an action for such damages, unless by virtue of some statute, or by prescription or agreement. In this case, the only defense claimed is the act 179, laws of 1867, repealing the act of 1847.

But that act can not be so broadly construed as to support the charge in this case, applying it to a stranger, not adjoining the lands trespassed upon; for the language is very clear and explicit in stating whet fence must be of lawful height before an action can be sustained, and it is first, a "partition" fence; second, "belonging to such person" (the plaintiff), "or by him to be kept in repair."

Now, as there is no such fence at common law, and no prescription or agreement is claimed, we have only to look into the statute to see what fences a person is bound to keep in repair, and under what circumstances; and the 14th chap., Comp. L., contains all there is on the subject.

The mere fact that the partition fence inclosing the plaintiff's land, in whole or in part, is defective, is not enough to bar his action; the defendant who seeks to defend himself under the statute, must also show that such fence "belonged to" the plaintiff, or was "by him to be kept in repair;" but that was not done in this case. It should have been done by showing Knickerbocker's lands improved, inclosed and occupied, and a division of the fence, and that the defective portion "belonged to" Aylesworth "to repair."

The spirit and intent of this whole fence law is simply this:

Chap. 14, Comp. L., enables one of two adjoining occupants to impose on the other, in a certain manner, the obligation of maintaining a certain portion of the fence between them; and when he has taken the proper steps for this purpose then the act of 1861 enables him (not a third person) to defend himself in an action by the other party who has failed to maintain his portion of the fence. It does not apply to a stranger defendant not occupying adjoining lands, for there can be no partition fence between him and the plaintiff; nor has he the right to compel plaintiff to build any fence whatever.

But it will be claimed that when the provisions of chap. 14 have been complied with, and the circumstances are such that an adjoining occupant might set up this defense, then a third party may also set up the same defense to an action againt himself.

If so, then the defendant's liability would depend upon the uncertain arrangements of two persons, made without reference to himself, for their own convenience, subject to constant change, and in which he has no legal interest, and over which he has no control. Such a construction would be absurd. The above reasoning is sustained by all the authorities where the statutes were similar to ours. Johnson v. Wing, 3 Mich. 163, is sound law. The act of 1847 did not apply to partition fences. Said chap. 14 was in force as now, and also Comp. L., § 5049, which, however, did not defeat the action, because there was no fence nor division of the line, and assignment to each a portion: 6 Mass. 70; 4 Met. 589; 4 N. H., 36; 7 Id. 518.

Palmer & Kinne, for defendants in error:

The common law of England, touching the obligations and liabilities of the owners of inclosed lands, so far as the question of fences is concerned, has been entirely supplanted in this state by the positive provisions of our statute: 3 Kent 583.

Prior to the act of 1847 (Sess. L., p. 181), no action for injuries upon inclosed lands could be maintained, unless the divisional fences answered the requirements of the statute. If a party failed to inclose his field, he waived his right of action. The statutes of Connecticut and Vermont are identical with our statutes of 1846, and they were so construed in the cases of Studwell v. Rich, 14 Conn. 292, and Mooney v. Maynard, 1 Vert. 470, wherein the law, as laid down in the case of Rust v. Low, 6 Mass. 99, was denied. The law of 1847 we regard as simply a declaratory statute, and intended to abolish all supposed distinction between exterior and divisional fences. It is true that this court, in the case of Johnson v. Wing, 3 Mich. 163, construed that statute as applying only to exterior fences, but that decision, if not erroneous, is certainly anomalous.

The act 179, Sess. L. of 1861, seems to remove the obligation to maintain exterior fences, but renders the existence of the statutory partition fence an absolute condition precedent to an action at law.

Under this broad and unqualified statutory enactment, the owner of inclosed lands can maintain no action against any tenant, whether adjoining or otherwise, unless, in the first instance, his partition fences are such as the law demands. He must satisfy the requirements of the statute before he can invoke the aid of the courts. Hence, there is no error in the charge or refusal of the circuit judge.

The onus probandi is upon the plaintiff to show that his partition fence is of lawful height and description.

In the absence of evidence, this court will presume that the cattle of defendants, if in the field of Mr. Knickerbocker, were in there rightfully.

2. The bill of exceptions is fatally defective in that not sufficient evidence is set forth to enable this court to determine the propriety of the instructions given to the jury, or the materiality of the refusals to charge as requested; nor in what manner, if any, they could affect the result of this case. There is even no evidence to show where the cattle broke the inclosure of the plaintiff.

On exceptions, every part of the charge or refusal of the court must be presumed to be correct and to be warranted by the evidence, so far as the bill does not show to the contrary: 10 Mich. 54.

3. By giving a general verdict in favor of plaintiff, the jury found the partition fences to be of lawful height and in good repair, and the plaintiff, therefore, has not been injured by the charge of the court, if such charge were erroneous.

The charge went to the whole cause of action and could in no wise affect the damages, except by defeating the action.

This court will not correct errors which work no injury to the party suing out the writ: 3 Mich. 55; 12 Id. 427; 13 Id. 70.

OPINION

Cooley Ch. J.:

Aylesworth sued the defendants in trespass, and, on the trial, gave evidence...