Brown v. Sams , 119 Tenn. 677 ( 1907 )

Mr. Justice Shields

delivered the opinion of the Court.

This is an action of trespass, brought to recover damages to plaintiff’s crop committed by the defendant’s hogs. There was judgment in the trial court for the defendant, and the plaintiff brings the case to this court.

The facts as found by the trial judge are as follows: The plaintiff and defendant owned adjoining farms, and constructed upon the dividing line a partition fence; each agreeing to keep in repair a certain portion of it. After some years, and about two years before this suit was brought, the plaintiff notified the defendant verbally that he would no longer keep up his part of the fence, and allowed the same to become defective and out of repair. No written notice was given of the plaintiff’s intention to withdraw from the agreement or to remove his part of the fence, and the defendant did not assent to such withdrawal. The defendant’s hogs passed from his field, through that part of the fence which it was plaintiff’s duty to keep up, into the field of the latter, and injured the crop growing thereon, to recover damages for which this action was instituted.

Partition fences upon the line between adjoining landowners may be erected and kept in repair at the joint expense of the adjacent proprietors. This may be done by agreement between the parties, or, in the absence of agreement, one party may erect or repair the fence and recover the proper proportion of the expense from the other. Code, secs. 1688-1692; Shannon’s Code, secs. 2998-3005; Acts 1875, p. 75, ch. 64. When the fence is constructed, the parties may agree that each keep a particular part of the same in repair, and where such agreement is made it is their duty to comply with it, and any one failing to discharge this duty is liable for all damages that may result from such failure. Acts 1875, p. 75, c. 64. These statutes are compulsory on adjoining landowners, where, as the provisions in relation to crops imply, the lands are cultivated. The fence in such cases is equally beneficial to both of them, and the statute requires that they contribute equally to the expense of constructing and maintaining it. Neither has the right to remove such a : fence, or fail to keep his part of it, when there is. agreement to that effect, in repair.

The cases of Clovers v. Sawyers, 1 Head, 157, and Stallcup v. Bradly, 3 Cold., 407, were decided before the statute of 1875 was enacted. Acts 1897, p. 243, c. 95,. applies only to cases where the fence used as a partition fence, or a part of it, is entirely upon the lands of one of'the adjoining proprietors, and such proprietor is the owner of the fence. In such a case under that act the owner of the fence may remove it by consent of the •other proprietor, or after six months’ notice in writing of bis intention to do so. It bas no application to a partition fence constructed upon tbe boundary line and kept in repair at tbe joint expense of tbe proprietors under tbe provision of tbe Code and tbe act of 1875. Sucb a fence is tbe joint property of both proprietors, and neither bas tbe right to remove it or any part of it.

It was therefore tbe duty of the plaintiff to have kept bis part of tbe partition fence between bis lands and those of tbe defendant in repair, and, tbe damages to bis crop having resulted from a failure to discharge this duty, be is without remedy.

Tbe plaintiff, however, insists that tbe defendant is liable for trespass committed by the bogs under chapter 151, page 315, of tbe Acts of 1903, which it is admitted applies to Hamblen county, making it unlawful to allow live stock to run at large and tbe owner liable for all damages done by such stock while at large. We do not think so. This statute does not repeal those in relation to partition fences. There is no express repeal. It is not done by necessary implication because there is no inconsistency, and tbe two statutes can well stand together. Fisher v. Baldridge, 91 Tenn., 418, 19 S. W., 227; McCampbell v. State, 116 Tenn., 107, 93 S. W., 100. Tbe latter act creates a greater necessity for partition fences than existed before it was passed. It requires tbe owner of live stock to keep it confined, and partition fences are necessary in many cases for this purpose. Cases may occur where one of tbe adjoining proprietors may not wish, to confine stock .upon his premises, but under our system of argriculture they ■are rare. Again, the defendant’s hogs were not running at large, but in his field, and escaped upon the premises of the plaintiff by the failure of the latter, to keep up his part of the joint fence. He cannot complain of an injury that was the direct result of his own wrong.

There is no error in the judgment of the circuit court, •and it is affirmed, with cost.