Sharp v. Quincy, O. & K. C. Ry. Co.

• Decision Date: 07 December 1908
• Citation: 123 S.W. 507
• Parties: SHARP v. QUINCY, O. & K. C. RY. CO.
• Court: Missouri Court of Appeals

123 S.W. 507

SHARP v. QUINCY, O. & K. C. RY. CO.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

On Rehearing, December 6, 1909.

1. RAILROADS (§ 103) — FENCES — CONSTRUCTION — STATUTES — NOTICE — "REPAIR" — "LAWFUL FENCE."

Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945), requires railroads in the first instance to build "lawful fences" on the sides of its road, and provides that, if it fails for three months after completion of the road to build a fence as required, the owner may build it and recover the cost. It also declares that, if a fence once erected becomes out of repair, the owner may, after giving five days' notice, and on failure of the railroad company to make the repairs, make them himself, and recover the cost. Held, that the word "repair" as therein used meant to restore to a sound or good state after decay, injury, dilapidation, or partial destruction, and hence, where a lawful fence, viz., one required to keep the landowner's stock from getting onto the track, had not been constructed, the adjoining owner was not required to give notice as a condition of his right to construct a lawful fence and recover the cost from the railroad company.

2. RAILROADS (§ 103) — FENCES — SWINE LAW — CONSTRUCTION — LAWFUL FENCE.

Rev. St. 1899, § 3295 (Ann. St. 1906, p. 1870), providing for the construction of fences sufficient to prevent swine from running at large, composed of wire 4 feet high and posts 16 feet apart, referred to outside fences other than those required of railroads, so that a fence conforming to such specifications, constructed by an adjoining landowner along a railroad right of way, did not constitute a "lawful fence," for the building of which the land-owner could recover from the railroad under Rev. St. 1899, § 1105 (Ann. St. 1906, p. 945).

3. APPEAL AND ERROR (§ 171) — THEORY OF CAUSE.

Where, in an action by a landowner to recover against a railroad company for the construction of a fence along the railroad right of way, the case was tried and an appeal argued on the theory that plaintiff's fence was a lawful one, provided plaintiff had been properly permitted to prove the adoption of the law preventing swine from running at large in S. county, such question being decided in plaintiff's favor, his judgment would be affirmed, though the fence erected by him was not a lawful one.

4. JUSTICES OF THE PEACE (§ 90) — PLEADING.

In actions before justices, strictness in pleading is not required, and great informality is allowed.

On Rehearing.

5. APPEAL AND ERROR (§ 181) — OBJECTIONS NOT RAISED AT TRIAL — REVIEW.

Objections not raised at the trial will not be reviewed on appeal.

6. APPEAL AND ERROR (§ 755) — BRIEFS — NECESSITY.

Under Rev. St. 1899, § 863 (Ann. St. 1906, p. 807), requiring appellant to furnish a brief containing the points intended to be insisted on, briefs cannot be waived, even by agreement of parties.

7. APPEAL AND ERROR (§ 758) — SPECIFICATION OF ERRORS — COURT RULES.

Supreme Court Rule 15 (73 S. W. vi), Kansas City Court of Appeals Rules 15, 17 (67 S. W. vi), and St. Louis Court of Appeals Rules 15, 18 (121 S. W. v), require that the points and legal propositions relied on for reversal of a judgment shall be separately stated, and shall distinctly state the errors committed by the trial court, and declare that no reference shall be permitted to any error not so specified.

8. ANIMALS (§ 92) — SWINE LAW — FENCES.

Rev. St. 1899, § 3295 (Ann. St. 1906, p. 1870), providing that fences in counties where the swine law is in force may be composed of wire 4 feet high, with posts 16 feet apart, only requires substantial compliance, so that, where in a distance of half a mile of fence constructed thereunder there were only two posts found that were more than 16 feet apart, the court properly refused to charge that, if any of the posts in the fence were more than 16 feet apart, plaintiff could not recover.

9. APPEAL AND ERROR (§ 835) — REHEARING — GROUNDS.

An appellate court will not consider on rehearing objections not properly presented to it originally.

Appeal from Circuit Court, Sullivan County; John P. Butler, Judge.

Action by John W. Sharp against the Quincy, Omaha & Kansas City Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. G. Trimble and Wilson & Clapp, for appellant. E. B. Fields, for respondent.

ELLISON, J.

Plaintiff instituted this action before a justice of the peace to recover the cost of a fence which he built along defendant's right of way along or through plaintiff's premises. There was a judgment in plaintiff's favor before the justice, and also on appeal to the circuit court.

The action is founded on section 1105, Rev. St. 1899 (Ann. St. 1906, p. 945). Plaintiff served defendant with a written notice "to build me a hog-tight fence along the north side of your railroad." The evidence disclosed that the railway company had a fence already constructed, but that it was not a proper or legal fence from the start. It was composed of only five wires, and was not constructed so as to prevent smaller domestic animals, such as hogs, from going through. It could not have been intended as a fence against hogs. The statute requires that the railroad must in the first instance build "lawful fences" on the sides of its road. And if it fails, for three months after completion of the road, to build a fence "as herein required," the owner may build it and recover the cost, etc. If the fence thus required is once built and becomes out of repair, the owner may give five days' notice of such nonrepair, naming the places where the defects are, and if the company fails to make the repairs, the owner may do so and recover cost, etc.

We held in McNear v. Ry. Co., 42 Mo. App. 14, that notice need not be given in cases where a fence had not been built; that the notice was only required when repairs were wanted on a fence already existing. But it was, of course, meant that the fence already existing must be the lawful fence, sufficient to turn stock of all kinds, as required by the statute. When that kind of a fence is built by the railroad, then if it becomes out of repair, notice must be given to the road as a prerequisite to the owner's right to do the repairing himself and recover the cost. But if the fence required by the statute has not been built, though some other kind has been, it is not a question of repair, but is rather one of original construction, and hence no notice to repair is required. To "repair" means to restore to a sound or good state after decay, injury, dilapidation, or partial destruction (Verdin v. St. Louis, 131 Mo., loc. cit. 87, 33 S. W. 480, 36 S. W. 52); that is, as applied to this case, to restore to original condition as near as may be. In this case the fence built by the railroad was not the one contemplated by the statute. It was a mere make-shift so far as practical use by a farmer was concerned. A notice to repair would have meant a maintenance of the worthless fence. The foregoing observations show the notice given by plaintiff was unnecessary, and it may therefore be left out of consideration.

This brings us to a point which, but for a consideration mentioned further on, would be fatal to plaintiff's case. The fence erected by the landowner must be the lawful fence which the railroad was required to erect. The fence built by plaintiff was as far from being such lawful fence as the original one. The posts were set 16 feet apart, and the top wire was only 4 feet from the ground. This description of fence was sought to be defended on the ground that Sullivan county had adopted the law preventing swine from running at large; the statute (section 3295, Rev. St. 1899 [Ann. St. 1906, p. 1870]) being that in such counties fences composed of wire and posts need only be 4 feet high and the posts 16 feet apart. But that part of that statute refers to outside fences, other than those required of railroads; the idea of the Legislature being that, where cattle and horses were permitted to run at large, and hogs were not, a fence of three wires on posts 16 feet apart was sufficient. But that does not apply to the fence of a railway company running along or through one's land. The fence there required is to keep the landowner's stock from getting out of his inclosure, while the fence mentioned in the statute is to keep stock at large from getting into such inclosure. The railroad is required to erect and maintain lawful fences just as it would if there were no stock law in force. The stock law does not relieve them, and has no bearing on the question. Stanley v. Ry Co., 84 Mo. 625; Morrow v. Ry. Co., 17 Mo. App. 103; Kingsbury v. Ry. Co., 156 Mo. 379, 57 S. W. 547. In order to hold the railroad liable plaintiff should have built a fence such as we law required the road to build, which, as we have just seen, would be a lawful fence if there were no stock law.

But the case was tried on the theory that, if the law restraining swine were in force in Sullivan county, the fence plaintiff built would be a proper fence, and that is the point as urged here, both in brief and argument. Defendant's contention, both at the trial and here, was, and is, that plaintiff had no right to prove the adoption of that law by the people of the county, for the reason that he had not pleaded that fact, and therefore his fence must be one with posts not more than 8 feet apart, instead of 16. The brief and argument is a concession that if that was not error, plaintiff could recover so far as that branch of the case was concerned. Therefore, considering and deciding the case as tried and as it is presented here, we find that, while there is no direct and affirmative averment of the adoption of the law restraining swine, yet the face of the entire statement filed with the justice discloses, clearly enough, the cause of action claimed and the statute upon which it is based. It would manifestly bar any other action for the same cause....