Grant v. Crow , 47 Iowa 632 ( 1878 )

Seevebs, J.

, Migeme de novo. This cause is not triable de novo in this court, because no motion was made in the court below for a trial there on written evidence, and for the further reason there is no certificate of the judge that the abstract contains all the evidence, and the abstract fails to state that all the evidence is contained therein. In thus stating we are governed by the amended abstract, as is the established rule when there is no denial of its correctness. Therefore, there can only be a trial in this court on such errors as are duly assigned.

The 1st, 2d and 5th errors challenge the correctness of the judgment or decree, and substantially assert that the evidence was not sufficient to warrant the decree. There being no sufficient showing that all the evidence is before ns, we are unable to say whether these errors are well taken or not.

The 4th .error assigned, in the view we take of the case, is regarded as wholly immaterial. This leaves only the 3d undisposed of, under which, whether strictly applicable or not, we will discuss what we understand to be the merits of this case, to such an extent as the record enables us to do.

2 trespass* í'iihmñ ti°n. The lane, as we understand, at one time existed as a fact, and was partly closed by consent or agreement. A part of the ^an<^ occupied by the lane belonged to the plaintiff, and it ran north and south'. At the time this action was commenced the plaintiff’s fence was on her land, and from ten to twenty feet west of the line. The fence erected by the defendant and .torn down by the plaintiff, and the erection and maintenance of which was enjoined by the court below, extended from east to west across the lane, and for from ten to twenty feet was on the land' of the plaintiff.

. We know of no statutory authority giving the defendant a right to erect and maintain a fence bn the plaintiff’s land, and certainly none such existed * at common law. The erection of such a fence is a trespass, and that the commission of a trespass may be enjoined we regard as settled. In tbe state of the record we are unable to determine whether such a case has been proved or not. Without doubt, however, the District Court so believed.

■ The plaintiff had the undoubted right, if she chose, to. fence off her own land in strips twenty feet wide. Rut in so' doing she could not ignore the rights of the defendant as an. adjoining land owner, and, therefore, might be liable to contribute to the erection of a partition fence. Whether she was so liable in this case we deem wholly immaterial. If she was this would not authorize the defendant to erect a fence on her land. He should have pursued the method provided by stat-' ute for the determination of the rights and liabilities of the parties. Instead of this he. saw fit to trespass on the lands of his neighbor, the direct tendency of which was to foment breaches of the peace, and if permitted to continue might have ended in blood being shed. He was, therefore, properly enjoined.

Affirmed.