Cook v. Cooksey

• Citation: 300 S.W. 1034
• Decision Date: 10 January 1928
• Docket Number: No. 20007.,20007.
• Parties: COOK v. COOKSEY et al.
• Court: Court of Appeal of Missouri (US)

300 S.W. 1034

COOK v. COOKSEY et al.

No. 20007.

St. Louis Court of Appeals, Missouri.

January 10, 1928.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Peter Cook against Samuel Cooksey and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Jerry B. Burks, of Farmington, for appellants.

B. H. Marbury, of Farmington, and T. H. Jackson, of Desloge, for respondent.

NIPPER, J.

This is an action by plaintiff to recover one-half of the value of a division fence. Plaintiff and defendants were adjoining landowners. The action originated in a justice court, and was tried in the circuit court upon an amended petition. The petition alleged that plaintiff was the owner of a certain fence made of posts and wire, four and one-half feet high, situated on the line running east and west between the lands of plaintiff and defendants, the defendants holding the estate by the entirety; that the fence runs along the division line running east and west between said lands; that said fence is 17 and 80/100 chains long, and is of a total value of $65.69. The plaintiff further alleged that requests for reviewers of said fence were filed before a certain justice of the peace in St. Francois county, and that thereafter there was an order made appointing three disinterested landholders of the township, who qualified, to view the premises and make the proper report; that one-half of the value of said fence was $32.84. Plaintiff asked judgment for this amount. The answer was a general denial.

There was no attack of any kind made upon the petition in the court below. Upon a trial before the court and a jury, there was a verdict and judgment in favor of the plaintiff, in the sum of $32.84. From this judgment defendants appeal.

The defendants purchased this land, consisting of about 39 acres, from one Aubuchon, after the fence was built. The original fence was a rail fence, but a short time prior to the purchase of the land by defendants plaintiff built a wire fence. It appears that, after plaintiff built the fence, the party who sold the adjoining land to defendants asked permission to connect with plaintiff's fence. It appears that the posts were 8 or 9 feet apart; the woven wire was 39 inches high; and some 8 or 9 inches above this wire was placed a barbed wire. There is some evidence that the fence was more than 5 feet high. The wire was some 2 or 3 inches above the ground at the bottom. Some of the posts were not more than 6 or 7 inches in the ground. This was due to the fact that the fence at this particular place passed over what is termed a "glade." In some places the posts were two feet in the ground, and they were good substantial posts. Plaintiff also showed that the fence was of a sufficient character to keep out live stock. Defendants objected to this testimony, but upon what grounds it is not clear, because the statute requires...