Meade v. Watson

California Supreme Court Oct 22, 1885 No. No. 8876Published

Before: Searls

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Holding. A complaint sufficiently alleges a lawful fence under the Act of 1855 if it describes a structure that is strong, substantial, and effective at enclosing land, even if it is not one of the specific types of fences enumerated in the statute. Furthermore, a defendant who connects their own fences to those of an adjoining landowner to complete an enclosure is liable for a proportionate share of the value of the partition fence.

Issues

Whether a stone fence not specifically enumerated in the Act of 1855 can be considered a 'lawful fence' under the statute.
Whether a defendant is liable for the value of a partition fence when their land is enclosed by connecting their own fences to those of an adjoining landowner.

Disposition. reversed

Quotations verified verbatim against the opinion

“we are of opinion the language of the complaint in this cause sufficiently alleges that the fence constructed by plaintiff, and for the value of which he seeks to recover, was and is a lawful fence.”

“A fence which forms a perfect enclosure and is sufficient to turn stock which is good, strong, and substantial, and built of stone, must, we think, be the equivalent of the lawful fences specifically described in the statute.”

Synopsis

Fences—Acts nr Relation Thereto.—The Acts of April 27, 1855, and April 3, 1860, concerning lawful fences, are continued in force under section 19 of the Political Code, and consequently the counties to which they apply arc not subject to the provisions of section 841 of the Civil Code.

Id._What Constitutes.—A fence which is good, strong, substantial, and built of stone, forming a perfect enclosure, and sufficient to turn stock, is a lawful fence within the meaning of the statute, although it is not specifically described therein. Id.—Division Fence.—The line or division fences provided for by the statute of 1860 must be lawful fences.

Id. —In an action brought under the statute to recover one half the value of a partition fence, and to foreclose a lien therefor, it is not necessary for the plaintiff to show that other fences which have been adopted by the defendant in completing Ms enclosure are lawful fences.

Road Laws—Constitution.—The road laws retained by the Code having been in force before the adoption of the present Constitution, are not affected by the provision against special legislation.

Searls, C. This is an action to recover the sum of §280, [592]with interest and counsel fees, and to foreclose- a lien for one half the value of a partition fence.

The appeal is from a judgment in favor of -defendant, on a demurrer to the complaint.

In addition to his general demurrer, defendant sets forth as special causes why the complaint is not sufficient, that the fence alleged to have been constructed by plaintiff is not one of the ■kinds of fence declared to be a lawful fence by the act of the legislature of the State of California, entitled “ an act concerning lawful fences,” approved April 27, 1855, and the acts supplementary thereto.

B. That there is no allegation in said complaint that the fence erected by plaintiff is as strong, substantial, and as well calculated to protect enclosures as either of the kinds of fence, by the said act declared a lawful fence.

C. That it appears that' neither of the fences described in the complaint is a lawful fence within the meaning of the aforesaid act of the legislature.

The allegations of the complaint essential to a decision on the demurrer are, that the plaintiff and defendant are adjoining land-owners, that plaintiff erected upon the line between his land and that of defendant, a good, strong, substantial, and lawful stone fence, three and one half feet high, two feet wide at the base and one foot wide at the top, compact and regular in construction, etc. The complaint then proceeds to aver that certain other coterminous land-owners erected fences, which together with his and certain fences erected by defendant, served to “and did and now does form a perfect and sufficient enclosure of all said premises, and sufficient to, and the same and the whole thereof did, and now does,-prevent the ingress of stock upon, or the egress of stock from said premises and the whole thereof.”

The land of defendant thus enclosed is not divided by a partition fence from that of Abbott, Shoemake, and Tuck, adjoining land-owners, but is enclosed in one common enclosure with their land.

The land in question is situated in the county of Stanislaus, and is therefore in one- of the counties governed by the act entitled “an act concerning lawful fences,” approved April 27, 1855 [593]

Meade v. Watson

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