Card v. Dale

Rothrock, J.

The case involves less that $100, and it comes to us upon the following certificate of the trial judge: “ 1. Is the following instruction given by the court, to-wit: ‘ If the fence built by plaintiff was on the line between the plaintiff’s and defendant’s lands, or was so near the line as, in your judgment, to serve the purpose of a line fence for the parties who owned the land on either side of the fence, then it may be regarded as a partition or line fence,’ — a correct definition of the term ‘ division fence,’ as used in section 1498, Code, 1873; or is a division fence, one on the exact true line? 2. What is the meaning of the term 1 division line’ when applied to partition fences as contemplated by section 1498, Code, 1873?” Counsel have argued the facts and the law of the case under several assignments of error. They do not seem to understand that in this class of cases they have no right to an appeal, and that this court is not authorized to determine anything but the questions of law certified by the trial judge. It depends altogether upon the facts in a case whether a fence is a partition fence. The question certified contemplates that the fence in controversy served the purpose of a partition fence; that is, that the parties used it as such. Now, if this was the fact, the instruction was, doubtless, correct. If parties use a fence as a partition between their farms, it is wholly immaterial whether it is on the exact boundary line, so far as the obligation to maintain the fence or contribute to its construction is concerned. It will be presumed that the fence in question was so near the boundary line between the farms, and that the parties had used it as a partition fence for such a length of time, as to authorize the instruction given by the court to the jur.y?

Affirmed.