Sharp v. Q., O. & K. C. Ry. Co.

ELLISON, J. —

Plaintiff instituted this action before a justice of the peace to recover the cost of a fence which, he built on the line of defendant’s right of way along or through plaintiff’s premises. There was a judgment in plaintiff’s favor before the justice and also on appeal to the circuit court.

The action is founded on section 1105, Revised Statutes 1899. Plaintiff served defendant with a written notice “to build me a hog tight fence along the north side of your railroad.” The evidence disclosed that the railway company had a fence already constructed but that it was not a proper or legal fence from the start. It was composed of only five wires and was not constructed so as to prevent smaller domestic animals, such as hogs, from going through. It could not have been intended as a fence against hogs. The statute requires that the railroad must in the first instance build “lawful fences” on the sides of its road. And if it fails for three months after completion of the road, to build a fence “as herein required,” the owner may build it and recover the cost, etc. If the fence thus required is once built and becomes out of repair, the owner may give five days’ notice of such non-repair, naming the places where the defects are, and if the company fails to make the repairs the owner may do so and recover costs, etc.

We held in McNear v. Railroad, 42 Mo. App. 14, that notice need not be given in cases where a fence had not been built. That the notice was only required when repairs were wanted on a fence already existing. But it was, of course, meant that the fence already existing must be the lawful fence, sufficient to turn stock of all kinds, as required by the statute. When that kind of a fence is built by the railroad, then if it becomes out of repair, notice must be given to the road as a prerequisite to the owner’s right to do the repairing himself and recover the cost. But if the fence required by the statute has not been built, though some other kind has been, it is not a question of repair, but is rather one' of original construction and hence no notice to repair is required. To “repair” means to restore to a sound or good state after decay, injury, dilapidation or partial destruction (Virden v. St. Louis, 131 Mo. l. c. 87), that is, as applied to this case, to restore to original condition as near as may he.

In this case the fence built by the railroad was not the one contemplated by the statute. It was a mere makeshift so far as practical use by a farmer was concerned. A notice to repair would have meant a maintenance of the worthless fence.

The foregoing observations show the notice given by plaintiff was unnecessary and it may therefore be left out of consideration.

This brings us to a point which, but for a consideration mentioned further on, would be fatal to plaintiff’s case. The fence erected by the land-owner must be the lawful fence which the railroad was required to erect. The fence built by plaintiff was as far from being such lawful fence as the original one. The posts were set sixteen feet apart and the top wire was only four feet from the ground. This description of fence was sought to be defended on the ground that Sullivan county had adopted the law preventing swine from running at large; the statute (Sec. 3295, R. S. 1899) being that in such-counties fences composed of wire and posts need only be four feet high and the posts sixteen 'feet apart. But that part of that statute refers to outside fences, other than those required of railroads. The idea of the Legislature being that where cattle and horses were permitted to run at large and hogs were not, a fence of three wires on posts sixteen feet apart was sufficient. But that does not apply to the fence of a railway company running along or through one’s land. The fence there required is to keep the land owner’s stock from getting out of his enclosure, while the fence mentioned in the statute is to keep stock at large from getting into such enclosure. The railroad is required to erect and maintain lawful fences just as it would if there were no stock law in force. The stock law does not relieve them and has no hearing on the question. [Stanley v. Railroad, 84 Mo. 625; Morrow v. Railroad, 17 Mo. App. 103; Kingsbury v. Railroad, 156 Mo. 379.] In .order to hold the railroad liable plaintiff should have built a fence such as the law required the road to build, which, as we have just seen, would be a lawful fence if there were no stock law.

But the case was tried on the theory that if the law restraining swine were in force in Sullivan county, the fence plaintiff built would be a proper fence, and that is the point as urged here both in brief and argument. Defendant’s contention, both at the trial and here, was, and is, that plaintiff had no right to prove the adoption of that law by the people of the county for the reason that he had not pleaded that fact, and therefore his fence must be one with posts not more than eight feet apart, instead of sixteen. The brief and argument is a concession that if that was not error, plaintiff could recover so far as that branch of the case vas concerned. Therefore, considering and deciding the case as tried and as it is presented here, we find that while there is no direct and affirmative averment of the adoption of the law restraining swine, yet the face of the entire statement filed with the justice discloses, clearly enough, the cause of action claimed and the statute upon which it is based. It would manifestly bar any other action for the same cause. It is scarcely necessary to say that in actions before justices, strictness is not required and great informality in pleading is allowed.

The judgment is affirmed.

All concur.