Burck v. Davis
| Decision Date | 01 February 1905 |
| Docket Number | 5,304 |
| Citation | 73 N.E. 192,35 Ind.App. 648 |
| Parties | BURCK v. DAVIS |
| Court | Indiana Appellate Court |
Rehearing denied April 6, 1905.
Transfer denied June 8, 1905.
From Lagrange Circuit Court; William J. Davis, Special Judge.
Action by Eugene Davis against Lavina Burck. From a decree for plaintiff, defendant appeals.
Affirmed.
R. P Barr, P. B. Green, O. L. Ballou and H. G. Zimmerman, for appellant.
John W. Hanan, for appellee.
A demurrer of the appellant to the amended complaint of the appellee, for want of sufficient facts, was overruled. In the amended complaint it was, in substance, alleged, that the appellant, June 19, 1901, was the owner of certain described land in Lagrange county, which then was and ever since had been enclosed, and was separated by a partition fence from the land of the appellee on the west side of the land of the appellant, and which then was and for many years prior thereto had been enclosed, and which at that date had been continuously, for more than ten years, separated from the land of the appellee on the west side of appellant's land by a fence, which at that time, and also on March 6, 1897, was constructed and used as a partition fence; that the appellee and the appellant and their predecessors had agreed that each should maintain a certain part of this partition fence; that the appellant should maintain and keep in repair seventy-nine rods of the partition fence, her proportion of said fence being described by setting forth the points of commencement and terminus and the course and distance; that June 19, 1901, the appellant's portion of the fence, or that part of the partition fence which it had been agreed that the appellant should maintain and keep in repair, was out of repair, and was defective and insufficient, and appellant's said partition fence would not turn stock, and was not sufficiently tight to hold hogs, sheep, cattle, mules or horses; that on and prior to that date the appellant had failed and refused to rebuild or repair her part of the fence, or compensate for building or repairing her part and portion of the partition fence, which was seventy-nine rods thereof, and the appellant then so failed and refused and ever thereafter has failed and refused to repair or rebuild her portion of the partition fence; that the appellee, as such landowner, and interested in said partition fence, gave to the appellant and served upon her notice in writing requiring and demanding from her to repair, rebuild, or compensate for the repairing of her portion of the fence, a copy of which notice was filed as an exhibit with the complaint; that this notice was served on the appellant June 19, 1901; that she did not compensate the appellee for such partition fence, nor did she repair or rebuild the same at any time thereafter; that twenty days after service of the notice, the fence not having been rebuilt or repaired, and the appellant having further refused to compensate the appellee for rebuilding or repairing the fence, the latter, December 11, 1901, served upon the trustee, naming him, of the township in which said real estate and said fence were situate, a notice in writing, a copy of which was made an exhibit, setting forth specifically the location of the fence, and showing that it was not a lawful partition fence; and thereafter, at the request and demand of the appellee, the trustee made out a written statement of the fact that said portion of said fence, so agreed to be maintained by the appellant, was not a lawful partition fence, and the due proportion and the amount of compensation the appellant should make in such repairs, and the trustee, April 23, 1902, delivered a copy thereof to the appellant, a copy of which was filed as an exhibit; that twenty days after the written statement was delivered to the appellant by the trustee the appellant had not rebuilt her share of the fence or made repairs thereto or compensated the appellee for so doing, as pointed out in said statement, and the trustee gave notice of the letting of the work of making such repairs, by written notices posted in three of the most public places in the township, the several places being stated in the pleading. A copy of this notice was made an exhibit. It was further alleged, that at the expiration of said notice, and at the time and place fixed therein, the trustee duly let the work by written contract, a copy of which was made an exhibit, to the appellee, who was the lowest responsible bidder, and took from him a bond for the faithful performance of his contract for the performance of the work, with sufficient solvent surety; that the appellee performed the work in accordance with this contract, and thereafter rebuilt said seventy-nine rods of said partition fence which it was the duty of appellant to rebuild, construct and repair, by building a fence, particularly described in the pleading. It was alleged that the fence so constructed was of the materials and according to the plans commonly used by the farmers of that township; that upon the completion of the work the trustee gave to the contractor--the appellee--a certificate, properly authenticated, showing the amount of work done, the amount and kind of material used, the contract price for the work and material, and the whole amount due the appellee as such contractor, also the amount due the trustee for his services, with the description of the land of the appellant. A copy of this certificate was made an exhibit. It was alleged that the amount due the appellee from appellant under this certificate was $ 75.05, and the amount due the trustee thereunder was $ 24; that the appellee, in August, 1902, demanded of the appellant the payment of said sum, together with $ 24 due the trustee, and the payment not having been made, and the appellant having refused to make payment, the certificate was, by the appellee, caused to be recorded in the office of the recorder of said county in the mechanics'-lien record, etc., which was done August 26, 1902; that the recorder properly indexed the recorded certificate, and that the amount named therein was a lien upon the real estate aforesaid, described in the certificate, which sum, it was alleged, was due the appellee and still unpaid; that a reasonable fee for appellee's attorney for foreclosing this lien was $ 100. Prayer, that the lien be foreclosed, and that the real estate, or so much as necessary, be sold for the payment thereof.
1. The statute of March 6, 1897 (§ 6564 Burns 1901, Acts 1897 p. 184, § 1), provides: "That all fences now constructed and used by adjoining landowners as a partition fence or fences unless otherwise specially agreed upon by such landowners shall be deemed partition fences and shall be built, maintained, repaired and paid for as hereinafter provided." By subsequent portions of the statute it is provided that all partition fences shall be built and kept in repair at the cost of the several landowners whose lands are enclosed (such lands being separated by the partition fences), equally, etc., "whether his, her or their title be in fee simple or a life estate." In case...
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