McKeever v. Jenks

• Decision Date: 20 September 1882
• Citation: 13 N.W. 295,59 Iowa 300
• Parties: MCKEEVER ET AL. v. JENKS ET AL
• Court: Iowa Supreme Court

13 N.W. 295

59 Iowa 300

MCKEEVER ET AL. v. JENKS ET AL

Supreme Court of Iowa, Council Bluffs

September 20, 1882

Appeal from Clarke Circuit Court.

ACTION to recover one-half of the value of a hedge grown by plaintiffs upon the line of their land, which constitutes a division fence between plaintiffs' and defendants' lands. There was a verdict for plaintiffs and a judgment rendered thereon, from which defendants appeal. The facts of the case appear in the opinion.

AFFIRMED.

Stuart Bros. and McIntire Bros., for appellants.

Temple & Talman and John Chaney, for appellees.

OPINION

BECK, J.

I.

The petition alleges that plaintiffs "built a good and substantial hedge fence," on the line of their land constituting a division fence between it and land owned by defendants, which was then uninclosed and unimproved; that subsequently defendants inclosed their land and joined their fences to plaintiffs' hedge; that the fence viewers of the township, upon plaintiffs request, after notice to defendants, did inspect the hedge and ascertain its value and that defendants were notified of the award by plaintiffs, who demanded payment for the fence. The plaintiffs claim to recover in this action double the value of one half of the fence as fixed by the award. The defendants answered the petition denying generally all its allegations, and subsequently filed two separate amendments thereto which are in the following language.

"FIRST AMENDMENT TO ANSWER.

"2. They say that they are, and were long before the proceedings referred to before the fence viewers, the owners of one-half of the said fence; that the said A. McKeever built such portion of said fence as has been built by him under and by virtue of a contract with the prior owner of the land that now belongs to the defendants; that he was fully paid for all the work done by him and that the title and ownership of the one-half of said fence passed to these defendants upon purchasing said land.

"3 That said fence is wholly worthless and a damage to the owner of the land on either side thereof and of no value whatever but an injury.

"4. Defendants claim the right to introduce evidence and be heard upon the foregoing defense. That they claim also their right to trial by jury therein. That before the said fence viewers they asked permission to plead and to introduce evidence upon the foregoing and other issues which was refused them entirely by said tribunal.

"That they also ask that the plaintiffs be put upon proof of their claim and the facts necessary to be ascertained before the said plaintiffs would have any right to recover, but that said board without evidence of any kind upon any point, and after refusing to consider or hear any and all evidence, made the findings set forth."

"SECOND AMENDMENT TO ANSWER.

"1. That the law and statute under which said fence viewers acted is unconstitutional in this: it deprives a person of, in any manner, being heard in court; it deprives a person of property without a day in court; it deprives a person of a trial by jury, which defendants demand upon the issues herein presented.

"2. Defendants further plead, by way of defense, that there never was, nor is there at this date, a hedge fence of the kind and character required by law; that there never was, nor is there at this date, a hedge fence of any kind upon the line maintained by plaintiffs, and for this cause said hedge fence viewers had no jurisdiction to act.

"3. That said fence viewers acted without authority in law.

"4. That said plaintiffs, long prior to the date said fence viewers acted, had been paid in full for said hedge fence, and had received full compensation for the same.

"5. That by reason of the fact of contract of purchase and payment, these plaintiffs are estopped from urging payment a second time, as is being done by this prosecution."

To these answers plaintiffs demurred, and the abstract shows that the demurrer was sustained as to the 3d and 4th counts of the first amendments, and to the 3d, 4th, and 5th, counts of the second, and was overruled as to the other counts of the answer. The decision upon the demurrer is complained of and the assignments of error assailing it will be first considered.

II. The fence viewers in this case determined the sufficiency of the hedge and its value. The statute clothes them with jurisdiction to decide upon these matters. Code, §§ 1490-2; Acts 1876, chap., 106, § 2. Their decision upon questions within their jurisdiction is conclusive. Bills v. Belknap, 38 Iowa 225. The 3d and 4th counts of the first amended answer, and the 3d count of the second, deny the conclusiveness of the decision of the fence viewers. The demurrer as to these counts was properly sustained.

III. The 2nd count of the first amendment, and the 4th and 5th, of the second, allege that plaintiffs had been paid for the hedge. The demurrer as to the 2nd count of the first amendment was overruled and was sustained as to the 4th and 5th count of the second. There is patent inconsistency in this decision as it is stated in the abstract. The court in the 11th and 15th instructions directed the jury to determine whether the plaintiffs had been paid for growing the hedge, or had grown it under a contract with the owner of the adjoining land, and if they should so find, plaintiffs cannot recover. There was evidence upon the issue thus presented to the jury, upon which, in special findings, as well as in the general verdict, they found for plaintiff. We are inclined to the opinion that the statement in the abstract to the effect that the demurrer was sustained as to the 4th and 5th counts of the first amended answer appear through mistake. But if the ruling was made as stated in the abstract, no prejudice resulted to defendants. The very issues excluded thereby were pleaded in another count of the answer and presented to the jury by proper instructions and a special verdict returned thereon.

IV. It is insisted by defendants that the 10th instruction given by the court is erroneous, for the reason that no evidence was offered tending to show that defendants joined their fence to plaintiffs' hedge. But this objection is not based upon facts. There is such evidence in the record.

V. The 7th instruction given to the jury is, in effect, that plaintiffs are entitled to recover, although for short distances, it was impracticable, on account of the condition of the ground, to grow the hedge. This instruction defendants insist is erroneous and base their objections upon section 2 chapter 106, acts 1876, which provides that "when any person builds a hedge on the entire line between his own, and uninclosed land," ...