Pettigrew v. Lancy

• Decision Date: 31 August 1871
• Citation: 48 Mo. 380
• Parties: THOMAS PETTIGREW, Defendant in Error, v. DAVID H. LANCY, Plaintiff in Error.
• Court: Missouri Supreme Court

48 Mo. 380

THOMAS PETTIGREW, Defendant in Error,

v.DAVID H. LANCY, Plaintiff in Error.

Supreme Court of Missouri.

August Term, 1871.

Error to Andrew Circuit Court.

H. S. Kelley and J. J. Davis, for plaintiff in error.

A partition or division fence may be made of rails in the form of a worm fence, one-half on either side of the mathematical or air line, and the owner or builder of the fence is not a trespasser, nor does he hold the land on which the fence stands adversely to the rights of the adjacent owner. (Dysatt v. Leeds, 2 Barr, 488; U. S. Dig. tit. Fences, 274, §§ 4, 5; 18 Barb., N. Y., 397; Newall v. Hill, 2 Metc., Mass., 180; Sparhawk v. Twitchell, 1 Allen, Mass., 450.) Hence, the court should have refused the plaintiff's instruction and given the defendant's.

Heren & Reed, for defendant in error.

I. If the plaintiff in error had inclosed with his said fence into his own inclosure ten acres of the land of defendant in error, no one could doubt but that it would be an unlawful detainer under the circumstances in this case. Because this is a small strip of land it makes no difference.

II. The parties abandoned the idea and arrangement that this fence should stand on the line and be a division and partition fence--the said plaintiff in error, as is shown by his own evidence, being the first to do so; and the defendant in error acting upon the notice given him by said plaintiff in error, the dissolution of the partnership fence was complete. Hence the act entitled “An act concerning partition fences, and to encourage the growing of hedges as such,” approved March 4th, 1869, does not apply. (Sess. Acts 1869, pp. 22, 23.)CURRIER, Judge, delivered the opinion of the court.

This is a proceeding under the statute for an unlawful detainer. It appears that the parties were adjoining land-owners, and built a division fence upon the line dividing their respective lots, each building half. The evidence tended to show that the center of the defendant's portion of the fence was upon the line separating the lots, the angles or corners of the fence projecting upon the adjoining ground. The fence was what is described as a worm or Virginia fence. It further appeared in evidence that six months prior to the institution of the suit, the plaintiff gave the defendant notice to remove so much of his fence as rested upon the plaintiff's lot.

At the trial the court instructed the jury for the plaintiff, upon the theory that the defendant had no right to build or continue any portion of his fence upon the plaintiff's ground in the manner indicated in the evidence, and refused to instruct for the defendant upon the opposite theory. The instruction refused directed the jury to find for the defendant if they were satisfied from the...