Griffin v. Anderson, 31279
| Decision Date | 16 July 1963 |
| Docket Number | No. 31279,31279 |
| Citation | 369 S.W.2d 889 |
| Parties | Howard GRIFFIN, Cleta Jean Griffin, Otes Kerley, (Plaintiffs) Respondents, v. Edward ANDERSON, (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
William B. Spaun, Hannibal, and John E. Mills, New London, for appellant.
Albert L. Rendlen, Branham Rendlen, and Rendlen & Rendlen, Hannibal, for respondents.
SAMUEL E. SEMPLE, Special Commissioner.
This is an action for damages resulting from an invasion of defendant Anderson's cattle on the land of plaintiffs Griffin and eating and trampling a growing crop of corn which had been planted thereon on a sharecrop basis by plaintiff Kerley. The trial resulted in a verdict in favor of the plaintiffs in the sum of $643.00. From the judgment for plaintiffs rendered on the verdict, the defendant has perfected an appeal to this court.
Plaintiffs, Howard and Cleta Jean Griffin, owned a 160 acre farm in Pike County, Missouri, which adjoined land owned by defendant Edward Anderson. Some years prior to 1958, plaintiffs Griffin and defendant Anderson, by mutual agreement, erected a division fence consisting of four strands of barbed wire on white oak posts along the east side of plaintiffs' farm which adjoined defendant's land. Plaintiff Howard Griffin testified that he and the defendant orally agreed that plaintiff Griffin was to maintain the south half and that defendant was to maintain the north half of this division fence. Defendant in his testimony in substance stated that the fence was built by agreement but positively denied that any agreement as to maintaining the fence after it was built was ever made or discussed.
In 1958 a crew of men employed by the Walker distillery were engaged in cutting timber for stave bolts on defendant's land. This timber crew crossed plaintiffs Griffin's land to get to some of the timber on defendant's property which was done without the permission or knowledge of the plaintiffs. The timber crew tore down a portion of the north half of the division fence between plaintiffs' (Griffin) and defendant's land to gain access to defendant's land. Plaintiff Howard Griffin testified that he discovered the break in the fence in the fall of 1958 and notified defendant of the situation. Defendant testified that plaintiffs said nothing about the break in the fence until June of 1959, but did state that a member of the timber cutting crew told him they had cut the fence. In the spring of 1959 plaintiff Kerley rented from the Griffins two fields separated by a spring branch and consisting of approximately twenty acres and planted corn thereon on a 50-50 sharecrop basis. Kerley cultivated the corn on June 15th for the second time and on or about June 21st or 22nd went back to cultivate the crop for the last time and found about twenty head of cattle in the two fields which he identified as defendant's stock. There was testimony by plaintiff Kerley that he drove the cattle back on to defendant's land through the gap in the fence made by the timber crew. He also testified that he inspected the entire fence and found it to be in good condition except for the break caused by the stave bolt cutters and that the tracks showed that the cattle entered on the Griffin land through the gap. The evidence revealed that the corn in the two fields was eaten and trampled down and was practically a total loss.
On the day of the trial plaintiffs filed an amended petition in two counts. The first count alleged a cause of action for damages for failure to restrain livestock under provisions of Chapter 270 R.S.Mo.1949, V.A.M.S. The second count of petition alleged that defendant entered into an agreement with plaintiffs Griffin whereby plaintiffs were to repair and maintain the south half of division fence on east side of plaintiffs Griffin's property and defendant was to repair and maintain the north half of the fence. This count then alleged that the casualty was the direct and proximate result of (1) defendant's failure to keep up and maintain the north half of the division fence in accordance with his agreement with plaintiffs Griffin and (2) the violation of the provisions of Chapter 270 R.S.Mo.1949, V.A.M.S., of defendant's permitting his cattle to run at large beyond the enclosures of his farm. Plaintiffs abandoned the cause of action alleged in Count One of the amended petition and tried the case on Count Two on the theory that defendant had failed to keep up and maintain the north half of the division fence in accordance with the agreement made with plaintiffs Griffin. Plaintiffs offered no evidence as to violation of provisions of Chapter 270 R.S.Mo.1949, V.A.M.S., and no instructions were offered or given on that theory of recovery.
Defendant contends that Count Two of the amended petition does not state a cause of action because it was improperly brought under Chapter 270 R.S.Mo.1949, V.A.M.S., for the reason that said chapter does not apply to adjoining owners whose fields are under a common enclosure. Aside from the question as to whether Chapter 270 R.S. of Mo., V.A.M.S. applies in this case, the contention cannot be sustained.
Adjoining landowners may provide for a division or partition fence between them by an agreement, and in such case the rights of the parties are to be controlled by the terms of the contract. A fence built under such an agreement serves to enclose both farms and each owner is entitled to treat the entire fence as a part of his enclosure and to look to his neighbor for the maintenance of that portion of the fence which the agreement required him to keep in reasonable repair. Matthews v. McVay, Mo.App., 234 S.W.2d 983,...
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