Frederick v. Bruckner
| Decision Date | 01 April 1907 |
| Parties | CHARLES A. FREDERICK, Respondent, v. CAROLINE BRUCKNER, Appellant |
| Court | Kansas Court of Appeals |
Appeal fro Cooper Circuit Court.--Hon. William H. Martin, Judge.
AFFIRMED.
Judgment affirmed.
John Cosgrove for appellant.
(1) The statement of the plaintiff does not state a cause of action under section 4573, Revised Statutes 1899. The statute is a penal one, and the plaintiff must bring himself strictly within its provisions to recover. Parish v Railroad, 63 Mo. 287; Potter's Dwarris on Statutes and Const., 245; State v. Reid, 125 Mo. 43; Dudley v. Tel. Co., 54 Mo.App. 391; Wilson v Burton, 96 Mo.App. 686. (2) The defendant was in actual possession of the land at the time plaintiff erected the fence, and which she cut. Plaintiff's possession was a prerequisite to an action of trespass. Cook v Redman, 45 Mo.App. 397; Lindenbower v. Bentty, 86 Mo. 515; Brown v. Center, 52 Mo. 46. (3) The plaintiff's first instruction is erroneous and should not have been given. Hedges v. Pollard, 149 Mo. 216; Blair v. Smith, 16 Mo. 275; Brummell v. Harris, 162 Mo. 397; Barnes v. Allison, 166 Mo. 96; Harding v. Wright, 119 Mo. 91; Whitaker v. Whitaker, 157 Mo. 354; Sell v. McAnaw, 158 Mo. 466; Houser v. Andersch, 61 Mo.App. 20; Brummel v. Harris, 148 Mo. 440.
W. G. & G. T. Pendleton, J. F. Rutherford and C. D. Corum for respondent.
(1) Plaintiff's statement, by express terms, was based upon section 4573, Revised Statutes 1899. It states a cause of action under the first clause of said section. Wilson v. Burton, 96 Mo.App. 686. (2) While plaintiff insists that his statement is clearly good under the statute, it will be further noticed that defendant took no exceptions to the form of the statement previous to nor during the trial. The law is well established in this State--indeed wherever the common law is known and practiced--that although a petition may be defective, yet, if it appear after verdict that the verdict could not have been given or the judgment rendered without proof of the matter omitted to be stated, the defect will be cured and the judgment will not be arrested. Jones v. Louderman, 39 Mo. 287; Richardson, Mellior & Co. v. Farmer, 36 Mo. 35; Kercheval v. King, 44 Mo. 401; Robinson v. Railway Con. Co., 53 Mo. 435; Golding v. Golding, 74 Mo. 123; Sawyer v. Railroad, 156 Mo. 476; Gustin v. Ins. Co., 164 Mo. 172; Buck v. Railroad, 46 Mo.App. 562; Murphy v. Ins. Co., 70 Mo.App. 78. Reference in the statement to the section of the statute cures all omissions. Jackson v. Railroad, 80 Mo. 147.
Action brought before a justice of the peace under the provisions of section 4573, Revised Statutes 1899, to recover damages and penalty for an alleged wrongful act of defendant in cutting a wire fence belonging to plaintiff, which served to enclose his farm. The verdict and judgment in the circuit court, where the case was tried on appeal, were for plaintiff in the sum of one cent actual damage and five dollars penalty.
The parties owned adjoining farms. Before the erection of the fence which is the subject of present concern, the only barrier between them was a rail fence which had been erected many years before, by a prior owner of plaintiff's farm. This fence was built wholly on land of its builder, and its distance from the boundary line varies from about a foot at each end to fifteen feet at other points along its course. It formed a part of plaintiff's enclosure and belonged entirely to him. Until some six years before the occurrence in question defendant's farm was not enclosed, and, though she endeavored to show title in herself by prescription, to the land between the real dividing line and the rail fence, her own evidence, as well as that of plaintiff, disproves the existence of such title.
It appears that plaintiff, while contemplating the building of a new fence, was approached by defendant with the proposal that he join with her in the expense of having the line surveyed, in order that the new fence could be accurately located. Plaintiff agreed to this, and defendant proceeded to have the line surveyed and marked by the county surveyor and paid the charge made for the service. She and plaintiff disagreed over the amount of the contribution the latter should make to her on account of that expense, and thereafter there was no peace between them. Plaintiff proceeded to build a new fence at his own expense, and his evidence tends to show that it was placed on his own land about one foot from the line surveyed, while the evidence of defendant places it about one foot over on her side of the line. Defendant cut the fence, and this suit was one of the unpleasant results of that act. In the preceding March (the fence was cut in September, 1903), plaintiff served written notice on defendant of his intention to rebuild his fence, in which he advised her that she "must cut loose from my said fence (the rail fence) on or about the first day of October, 1903, and not rejoin thereafter." Defendant, with the consent of plaintiff had been using the rail fence as a part of the enclosure maintained on her farm, for a period of several years; hence the notice.
In the statement on which the case was tried, it is alleged
The sufficiency of these averments to constitute a cause of action is challenged by defendant on several grounds, but the attack was made for the first time in the motion in arrest and we are of opinion that, notwithstanding, the penal provisions of the statute require that it be strictly construed and not enlarged by implication, the defects claimed, if any exist, were waived by failure of defendant to take advantage of them by demurrer. It was not necessary to allege that the fence cut was a partition fence dividing the two farms, since it would constitute an offense, under the statute, for defendant to...
To continue reading
Request your trial