Jones v. Derosset

• Decision Date: 15 April 1916
• Docket Number: No. 1675.,1675.
• Citation: 185 S.W. 239
• Parties: JONES v. DEROSSET et al.
• Court: Missouri Court of Appeals

185 S.W. 239

JONES v. DEROSSET et al.

No. 1675.

Springfield Court of Appeals. Missouri.

April 15, 1916.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by L. G. Jones against Walter Derosset and another. Judgment for defendants, and plaintiff appeals. Affirmed.

L. Cunningham, of Bolivar, for appellant. J. M. Leavitt and Rechow & Pufahl, all of Bolivar, for respondents.

STURGIS, J.

This is an action for damages for cutting down and removing an alleged partition hedge fence between the lands of plaintiff and defendants. The petition is in separate counts, one for double damages and the penalty of $5 under section 5449, R. S. 1909, and the others for single damages for the value of one-half the destroyed fence. The defense is that this hedge fence was not a division fence under the provisions of our statute, but belonged wholly to the defendants. The case was tried without a jury, and judgment went for defendants.

The evidence shows that the hedge fence in question had been planted more than 40 years prior to this controversy by the owner of the land on the east side thereof, such owner being the deceased husband of one of the defendants. A brother of such owner was the owner of the land on the west side. There is evidence sustaining the finding, which the court must have made under the instructions given, that the owner of the east tract of land intended to plant this hedge near the dividing line, but wholly on his own land, and that he did so according to an older fence, supposed to be on such line. A survey made at the time this dispute arose showed that the hedge fence was in fact as near on the division line as such a fence could well be. It is also shown that after such owner of the east tract had planted this fence he cultivated and cared for it till it became a substantial fence, and that he never took the steps provided by section 6459, et seq., R. S. 1909, to compel the owner of the adjoining west tract to pay for one-half such fence, and thereby make it a statutory division fence, owned jointly by the two adjacent landowners. On the contrary, the evidence shows that the owner of the east tract continued to exercise ownership over, and claimed, the fence as entirely his own. The plaintiff had owned his tract, the west one, only a few years before this controversy arose, having bought it at partition sale, but the evidence shows that the prior owners had recognized the fence as belonging to the owner of the east tract, and had not claimed or acted to the contrary. At the time of this controversy the hedge fence had not been cared for by any one in the manner required by statute for a number of years, and had grown into hedge trees of considerable size, valuable for fence posts rather than as a fence. The defendants cut this hedge for the purpose of making such posts. No damages were proved other than the value of the hedge for the fence posts, though plaintiff offered to prove the diminished value of his land.

Under no theory supported by any evidence can plaintiff recover for the removal of a partition fence. The instruction asked by plaintiff on this theory is to the effect that if the hedge, at the time defendants cut and removed it, constituted a fence between the lands and fields of defendants adjoining on the east side and the lands and fields of plaintiff adjoining on the west side, and no six months' notice was given by defendants of their intention to cut and remove same, then the finding must be for plaintiff. This instruction was properly refused, as it ignores the statutory requirements as to what must be done and how a fence built by one landowner may become a division fence owned in undivided one-half interest by each such landowner. It is only when the fence is both on the division line and the landowner who has not constructed the same has, voluntarily or by statutory compulsion, paid the other owner one-half the value thereof that the former becomes a one-half owner and the fence a division one. Kneale v. Price, 29 Mo. App. 227; Mackler v. Cramer, 32 Mo. App. 542; Id., 48 Mo. App. 378; McLean v. Berkabile, 123 Mo. App. 647, 100 S. W. 1109; Johnson v....