Leipske v. Guenther , 7 Wis. 2d 86 ( 1959 )

The following memorandum was filed June 2, 1959:

Hallows, J.

(on motion for rehearing). The appellant calls our attention to an error in the opinion in which we stated that the fence separating the pasture from the school grounds consisted of woven wire with three strands of barbed wire. The opinion is corrected in that respect to state the fence between the school grounds and the pasture was of mesh wire about four feet seven inches without barbed wire and was installed by the school board. The fence described in the opinion surrounded the pasture except along the schoolyard fence. This fence likewise meets the statutory requirements for legal and sufficient fences. Sec. 90.02 (1) (d), Stats.

The appellant contends that since the defendant was not the owner of the school fence he did not have a legal and sufficient fence at the place where the horse reached over the fence and bit the ear of the plaintiff. The ownership of the fence here is immaterial since in fact the fence served to close the defendant’s pasture along the school grounds and under the facts the horse would have thrust his head over the fence no matter who owned it.

The rest of the appellant’s brief reargues issues which were argued and considered by the court and which we believe were correctly disposed of on the appeal.

Since the respondent did not file a brief on rehearing he is not entitled to costs.

By the Court. — Motion for rehearing is denied without costs.