Harndon v. Stultz

• Decision Date: 12 July 1904
• Citation: 100 N.W. 329,124 Iowa 440
• Parties: HARNDON v. STULTZ.
• Court: Iowa Supreme Court

124 Iowa 440

100 N.W. 329

HARNDON

v.STULTZ.

Supreme Court of Iowa.

July 12, 1904.

Appeal from District Court, Story County; George W. Dyer, Judge.

The opinion states the case. Affirmed.

J. F. Martin, for appellant.

E. H. Addison, for appellee.

WEAVER, J.

The record in this case is brief, but not entirely clear. As we interpret it, the plaintiff is the owner of a 40-acre tract of land, and her husband is the owner of the adjoining 40 acres to the eastward; both tracts being used and occupied as one farm. The defendant owns the quarter section which bounds both of these 40's on the south. Many years ago--probably before the quarter section now owned by defendant was improved--plaintiff or her husband planted a willow hedge along the entire south line of her 40 acres. Later the defendant or her grantor, having purchased the quarter section, extended the hedge eastwardalong the entire south line of the 40 acres owned by plaintiff's husband. It is claimed by plaintiff that, by a subsequent agreement between the parties, the defendant undertook to keep up the west 80 rods of the half mile of hedge as a line fence, while plaintiff or her husband assumed like responsibility as to the east 80 rods. This claim is disputed, but we think it immaterial which contention is correct. It further appears that, some years since, plaintiff's husband dug up or destroyed the east half of the hedge, substituting therefor an ordinary fence, and has since requested or demanded that defendant remove the west half. She now brings this action in equity to enjoin the maintenance of the hedge, and to compel its removal, on the alleged ground that the roots of the trees spreading through the soil, and the shade cast by the branches above, operate to render a considerable portion of her land unproductive, and thus materially to depreciate the value of its use. As will be noticed, the suit is not brought upon plaintiff's right to have the hedge trimmed or cut back (Code, § 2355), but she demands its entire removal, as a nuisance. As alternative relief, she asks that, if defendant be found to be under no obligation to remove the hedge, she may herself be allowed to remove it at her own expense. The defendant denies plaintiff's right to the relief demanded, and disclaims all interest in the hedge. The trial court dismissed the petition, and plaintiff appeals.

We find no law upon which this action can be sustained. The plaintiff herself set out the hedge which she now characterizes as a nuisance, and even if, as she claims, the care and maintenance of such hedge were afterward assumed by defendant or by defendant's grantor, there is nothing in the statute upon the subject of line fences which makes it defendant's...