Matthews v. McVay

• Decision Date: 08 December 1950
• Docket Number: No. 6944,6944
• Parties: MATTHEWS v. McVAY et ux.
• Court: Missouri Court of Appeals

Page 983

234 S.W.2d 983

241 Mo.App. 998

MATTHEWS v. McVAY et ux.

No. 6944.

Springfield Court of Appeals, Missouri.

Dec. 8, 1950.

McReynolds, Flanigan & Flanigan, John H. Flanigan and Laurence H. Flanigan, Carthage, for appellant.

R. A. Esterly, Carthage, for respondents.

VANDEVENTER, Presiding Judge.

From a judgment on a petition for a declaratory judgment, plaintiff appeals.

The petition alleged that plaintiff and defendants were adjoining landowners and that between their respective acreage was a partition fence; that many years ago, plaintiff and defendants, and their predecessors in title, had orally agreed to maintain a definite portion of said fence between their lands, and that the agreement was for plaintiff to maintain the north 80 rods of the south 90 rods of said division fence and defendants to maintain the remainder, but that defendants understood they were to maintain the north 80 rods and the plaintiff to maintain the south 80 rods.

It was further alleged that the south part of said fence was posts and woven wire, which was sufficient to restrain horses, cattle, sheep and hogs but the northern part of said fence is hedge and is wholly insufficient to turn sheep and hogs, and in many places not sufficient to turn horses and cattle; that it was the duty of each of the parties to maintain their portion of the fence in a condition that would at all times restrain horses, cattle, sheep, goats, hogs and small animals, but that defendants insisted they were only obliged to maintain their portion of the fence so as to restrain horses and cattle; that at times since the parties hereto became adjoining proprietors, animals of plaintiff have trespassed on defendants' land and animals of defendants have trespassed on plaintiff's land and at such times damage resulted. Plaintiff is willing to assume responsibility of maintaining her portion of the fence according to her understanding but because defendants did not agree as to the portion and type of fence each was to maintain, that they were insecure as to their legal relations as adjacent landowners and for that reason plaintiff was petitioning for a declaratory judgment fixing their mutual rights, duties and responsibilities. Plaintiff prayed the court to decide, (a) whether the fence between them, or any part thereof, is an agreed fence subject to the terms and conditions of an oral agreement binding upon them, (b) what were the terms and conditions of the agreement, (c) whether the parties are bound and obligated to maintain their respective portion of said fence in a condition sufficient to turn goats, sheep, hogs and small animals, as well as horses and cattle and (d) if the court finds said division fence is not an agreed fence between the parties, that it so declare so plaintiff may proceed under the statute to have a statutory fence established, and the court was asked to render a judgment 'declaratory of all the rights, duties and responsibilities of the plaintiff to the defendants and of the defendants to the plaintiff with reference to the division fence between the parties, and for all proper relief.'

In their answer, defendants admitted the ownership of the tracts as described in the petition; that their respective acreages were contiguous and that many years ago there had been an oral agreement relative to the maintenance of certain portions of said partition fence; denied being responsible for the maintenance of any portion of said fence other than the north 80 rods thereof and that their responsibility on that portion was only to maintain a fence sufficient to restrain horses and cattle. Defendants denied that the south half of the fence was sufficient to turn horses, cattle, sheep and hogs, asserted that the north part was sufficient to turn horses and cattle and stated that neither of them was under a duty to maintain a fence that would restrain sheep, goats, hogs or other small animals. It was further admitted that from time to time animals belonging to plaintiff would cross the fence onto the lands of defendants, causing them damage but denied that defendants' animals had gone through the division fence and caused damage to the plaintiff. It was admitted there was a disagreement between the parties but denied that defendants, or their predecessors, had ever obligated themselves to maintain more than the northern half of the fence and that only to the extent of turning horses and cattle. The prayer asked the court to adjudge and declare that defendants were responsible for the maintenance only of the north 80 rods of said division fence and then only in a manner sufficient to turn horses and cattle 'and for such other relief as the court may deem just and proper.'

A trial was had without a jury but none of the testimony has been brought up in the transcript, it being contended by appellant that the record proper is all that is necessary for determination of the questions presented.

However, by agreement of the parties, the record contains a stipulation, which states by way of introduction that 'in the trial court there was evidence tending to show and contradict the following: * * *.' This stipulation then recites that at the time of the alleged agreement and for more than 30 years thereafter, the entire half mile of the division fence, except the south 10 rods thereof, consisted of hedge or Osage Orange, with occasional openings, wired with barbed wire but neither end thereof had been sufficient to turn sheep, goats, hogs or other small animals; that about the years 1935 or 1936, plaintiff's predecessor in title removed the hedge, which had become time, from the south half of the division fence and in its place built a barbed wire fence; that in the year 1939, defendants added four strands of barbed wire to the north half which was hedge fence and that in 1946 or 1947, plaintiff's predecessor in title installed new hog wire on the entire south half of the division fence except for the south ten rods, which had always been unfenced. That at the present time, the north half was of hedge construction with four strands of barbed wire and never had been sufficient to turn sheep, hogs, goats and other small animals, that the south half, except the 10 rods which is unfenced, consists of hog wire strung on posts and that 'on occasion' hogs have worked their way under or through this fence; that when either of the adjoining landowners wanted to put hogs or other small animals on that part of his farm adjoining the division fence, such party would make the division fence hog tight adjacent to the area in which the hogs were permitted to run. That the original agreement establishing and dividing the fence had never been modified and that Jasper County had adopted the Missouri 'Stock Law' at the time of the trial of the case.

The case was submitted to the court and he rendered a decree finding that plaintiffs and defendants were the owners of the tracts of land described which were adjoining farms and that the boundary line extended between the farms for one-half mile or 160 rods; that many years ago the division fence became an agreed fence by oral agreement by the then owners of the lands, by the terms of which plaintiff and her predecessors in title were obligated to maintain the south 80 rods and defendants and their predecessors the north 80 rods, 'that at the time said agreement was made, there was no agreement as to the type or character of said fence to be maintained;' that for many years and up to the present time, the north 80 rods consisted of a hedge fence which would not turn all manner of cattle and that on the south portion there is a 'hog tight' fence. The judgment then stated: 'The court therefore finds, decrees and declares that there is an agreed fence between plaintiff and defendants, and that under said agreement plaintiff is obligated to maintain and be responsible for the south 80 rods of said division fence, and defendants are obligated to maintain and be responsible for the north 80 rods of said division fence; that said fence shall be of such character as to turn horses and cattle; that in the absence of agreement neither party is obligated to maintain a fence that will turn all manner of livestock, including sheep and hogs; that either party has the right to maintain and erect any type of fence either of them may desire, so long as said fence is sufficient to turn horses and cattle; and that each party shall pay the costs incurred by them.'

The appellant in his brief states: 'The precise point at issue on this appeal may be boiled down to this question: Where adjacent landowners have by agreement divided their partition fence, each agreeing 'to maintain and be responsible for' a certain part thereof, where said agreement contains no provision 'as to the type or character of fence to be maintained', do the parties perform by maintaining a fence that will turn horses and cattle, but will not turn sheep and hogs?'

It has been held that declaratory judgment actions are of an equitable character, Connell v. Jersey Realty & Investment Co., 352 Mo. 1122, 180 S.W.2d 49. Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395. Crollard v. Northern Life Ins. Co., Mo.App., 200 S.W.2d 375, and if so, then it is our duty to decide the case de novo and render such judgment as we think should have been entered by the chancellor. If it is a case at law, (See: Section 1134, Mo.R.S.A., State ex rel. U.S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25. Roberts v. Murray, Mo.Sup., 232 S.W.2d 540, it was tried by the court without a jury, and should upon review be treated by us in the same manner as if it were a suit of an equitable nature. Sec. 847-114, Mo.R.S.A. Cosentino v. Heffelfinger, Mo.Sup., 229 S.W.2d 546. Johnson v. Buffalo School Dist. No. 1 of Dallas Co., Mo.Sup., 231 S.W.2d 693. In either event, our responsibility is the same, giving due deference to the judgment of the trial court, who observed and heard...