Rudisill v. Cross

• Decision Date: 23 May 1891
• Citation: 16 S.W. 575
• Parties: RUDISILL v. CROSS.
• Court: Arkansas Supreme Court

16 S.W. 575

RUDISILL v. CROSS.

Supreme Court of Arkansas.

May 23, 1891.

Appeal from circuit court, Clark county; RUFUS D. HEARN, Judge.

J. H. Crawford, for appellant. Murry & Kinsworthy, for appellee.

HUGHES, J.

The appellant sued the appellee in a justice of the peace court for half the cost of a partition fence, and recovered judgment for $18.47, from which appellee prosecuted an appeal to the circuit court, where judgment was rendered in his favor, from which the appellant prosecutes this appeal. The parties agreed to build a partition picket fence between their town lots. Appellant built the entire fence, and appellee refused to pay for half the entire fence, contending that he was to pay for half of that part of the fence only used by him. Appellee had joined his fence to the partition fence. Appellant afterwards proposed to appellee that, if he would not pay half the cost of the fence, and would cut loose from it, and not use it at all, and build a fence of his own, that he (appellant) would keep the fence built by him as his own, and in that event the appellee need not pay anything for it. Appellee continued to use the partition fence, and did not make his fence loose from it, paid nothing towards the cost, nor for the use of the partition fence. He says, in his testimony, that at first he did not accept the proposition of appellant, but that he did afterwards agree to it, and told appellee that he could keep all the fence. The court instructed the jury that, "if the jury find from the evidence that there was a second contract, and that Cross released his interest in the fence to Rudisill, this is a sufficient consideration to bind the second contract, and they will find for the defendant." "The obligation of a land-owner to build and maintain a division fence, in whole or in part, for the benefit of adjoining land, is something more, indeed, than an obligation to furnish the materials and labor necessary from time to time for the erection and reparation of the fence; it imposes a burden upon the land itself. A partition fence ordinarily must rest equally upon the land of the respective proprietors. Hence an agreement of one of those proprietors to maintain such a fence necessarily imparts a dedication of the land required to support half of it. To that extent it is therefore an estate in the land itself. In accordance, then, with the general rule that an easement, being an interest in realty, cannot be conveyed or reserved by parol, an agreement by an owner of land to maintain a partition fence...