Trego v. Pierce , 21 W.N.C. 568 ( 1888 )

Opinion,

Mr. Justice Paxson :

This case comes up bristling with exceptions, and a paper book containing seventy-eight pages. It involves the sum of $35, the cost of a partition fence.

The plaintiff, being of opinion that the line fence between her property and that of the defendant was insufficient, applied to the fence viewers to examine the same and report upon its sufficiency and the cost of rebuilding it. The fence viewers found that 100 feet of this fence had been erected by the plaintiff of new material; that the remaining 100 feet of fence was insufficient as a yard inclosure, and that it was the duty of the defendant to erect in its stead “ a suitable fence, upon which they estimate the cost at $35.” Whereupon the defendant proceeded to erect what he claimed to be a sufficient fence, and a compliance with the report of the viewers. It did not satisfy the plaintiff, however, and she proceeded to remove it and erect a new fence in lieu thereof, of a more expensive character. She then brought this suit to recover the cost of it.

It was alleged and the fact appears to be, that in erecting the fence the plaintiff moved it about six inches at one end and sixteen at the other end, from the line where it had stood for many years. The defendant contends that this was an encroachment upon his land, and much of the time upon the trial in the court below was occupied by this contention. This portion of the time would appear to have been wasted under the ruling in the case of Stevens v. Shriver, 25 Pa. 78, where it was said by Lowbie, J.: “ It is not at all necessary that partition fences should go to ruin because of the owners being in litigation about their lines: indeed, this could only add to their difficulties. If there be in fact a partition fence, the duty of contribution to maintain it exists, and neither party can excuse himself from this duty by alleging, whether sincerely or falsely, that the line is in dispute; and the law relating to fences. contemplates no such mode of suspending the remedy which it provides .....If the line needs correction, let it be made: and then it is easy to set the fence right.” In that case the plaintiff below built the fence, but removed it from the foundation on which it had stood many years, westward, about a rod more or less, into the field of Stephens, the defendant below, and took from Stephens’ field a rod of land in breadth and sixty rods in length, and a row of cherry trees. The parties differed as to the lines and corners. The claim was for the cost of one half the fence, and was sustained by the court below and here.

We think it was error, therefore, to charge the jury that the plaintiff could not recover in case they found that she had moved the location of the fence, and the evidence upon this point should have been excluded. Boundary lines cannot be established in this form of proceeding. The object of the act of assembly in regard to fence views is to provide a summary remedy to keep partition fences from going into dilapidation. Disputed questions as to lines can be settled afterwards. This was manifestly a line fence in fact; whether it was erected upon precisely the true line, is a question foreign to this proceeding.

We do not reverse, however, for every trifling error that creeps into a cause in the hurry of a trial before a jury. Some substantial injury must have been the actual or probable result of such error to justify us in disturbing the judgment.

Had the defendant refused to erect this fence as required by the fence viewers, the plaintiff would have been justified in erecting it herself and charging him with the cost. Such is not the case. The defendant complied, as he alleges, substantially, with the report of viewers, and it is clear that the fence erected by him was sufficient, though not perhaps as ornamental or durable as the plaintiff desired. Of her own motion, and upon her own view, she took it down and erected a new one in its place. She made herself the judge of its sufficiency and demolished it. This perhaps she might do if she- preferred to build a better and more attractive looking fence at her own expense, but she cannot thus arbitrarily throw the cost of it upon the defendant.

As she is not entitled to recover, the errors referred to did her no harm. The judgment therefore must be

Affirmed.