Moore v. White

• Citation: 45 Mo. 206
• Parties: J. H. MOORE, Plaintiff in Error, v. J. L. WHITE, Defendant in Error.
• Decision Date: 31 January 1870
• Court: United States State Supreme Court of Missouri

45 Mo. 206

J. H. MOORE, Plaintiff in Error,

v.J. L. WHITE, Defendant in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

Stephens & Dryden, and White, for plaintiff in error.

Draffin & Muir, for defendant in error.

CURRIER, Judge, delivered the opinion of the court.

The parties to this suit were occupants of adjoining lands--their respective fields being separated by a fence. A considerable number of the defendant's domestic animals broke through this fence and into the plaintiff's adjoining field and injured his crops. This suit is brought to recover the consequent damages. The only questions for consideration relate to the legal sufficiency of the fence, and the right of the plaintiff to the enjoyment of its benefits.

The case shows that the fence was constructed some eighteen years since by the then proprietor of the farm now occupied by the defendant. The farm was subsequently purchased by one Gibson, who died some years ago, but the farm still constitutes a part of his estate. Prior to his death, and by his permission, the plaintiff connected the fence inclosing his own lot, with Gibson's fence, so that Gibson's fence bounded and protected the plaintiff's field on the side adjoining Gibson's land. A late survey discloses the fact that the fence was some three feet on Gibson's land from the true line dividing the lands of the adjoining proprietors. The plaintiff had no other fence on that side to protect his field.

The defendant insists, for substance, that the fence being on Gibson's land, and owned by him, it was not a division or partition fence, and deduces the conclusion that the plaintiff's field was not inclosed, as the law requires as a condition to his recovery for the trespass complained of. We do not take that view of the subject. The statute (Gen. Stat. 1865, §§ 1, 2) simply declares that “all fields and inclosures shall be inclosed” by a fence of a given description, without going into the question of the proprietorship of the inclosing fence. It is the existence of the required fence as a fact that the statute demands. It says nothing about who shall erect, preserve, or own it. It was not until 1869 that the Legislature addressed itself to these topics. (Wagner's Stat. ch. 57.) The plaintiff's field was in fact inclosed, and, if by a fence of the required character and dimensions, that was sufficient so long as the fence remained. Had Gibson or the succeeding occupant suffered the fence to go to decay, or had it removed, the case would have presented a different aspect. It did not go to decay and was not removed, but remained, and for all practical purposes constituted a partition fence between the adjoining owners. No one had ever objected to its being so treated and considered. We think, therefore, that the court was warranted in directing the jury that the plaintiff was entitled to recover, so far as this point was concerned, if they found from the evidence that the fence in question was treated and used as a partition fence by the adjoining occupants.

But the defendant further insists that the only mode of establishing the legal sufficiency of the fence was by pursuing the steps pointed out in the statute. (Gen. Stat. 1865, p. 385, §§ 3, 5.) If this suit were founded on the statute, there would be force in this position. But it is not so founded. The plaintiff is simply pursuing a right at common law by a common-law remedy. It is not a suit...