WHEN THE BUILDING OF A PARTITION FENCE MAY BE REQUIRED.

Court of Appeals for Vinton County.

#### David A. Jennings v. Fred W. Wilson et al, Trustees of Wilkesville Township, Vinton County, Ohio.

Decided, December, 1921.

*Fences*— Construction *of the ¡Statute Relating to the Building of Partition Fences*— Benefits.

Landowners must build partition fences as required by Section 5908 unless sucb fences will be of no benefit to their lands.

*David A.*Jminings, plaintiff, appearing on behalf of himself.

*John E. Blake,*prosecuting attorney, on behalf of defendants.

Sayre, J.

This is an action for injunction to prevent the trustees of Wilkesville township from proceeding in accordance with Section 5908, *et seq.,*to compel, the plaintiff to build or pay in taxes for the building of a partition fence.

Before the last amendment Section 5908 then R. S'., Section 4239) read in part as follows:

> “The owner * * * of land, adjoining a fence of whatsoever material constructed, in all respects such as a good husbandman ought to keep, erected by the owner * * * on the line of his -land, who makes or causes to be made an inclosure adjoining such fence "so that such fence answers the purpose of inclosing his land, shall pay * *

The decision in *Kingman*v. *Williams,*50 O. S., 722, rests upon the statute just quoted as it read in 1893. But except as a matter of history *Kingman*v. *Williams*is of no consequence now, because by the amendment of April 18, 1904, 97 O. L., 138), the statute was changed tq read as it does now:

> ‘ ‘ The owner of adjoining lands shall build, keep up and maintain in good repair, in equal shares,.all partition fences between them, unless otherwise agreed upon by them in writing * *

*454The decision in the case of *The Alma Coal Co.*v. *Cozad,*79 O. S., 348, holds that such act—

> “may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a line fence for the sole benefit of the adjoining owner. ”

This decision has given rise to much confusion and' discussion. It was admitted by the demurrer in that case that the lands of the plaintiff were—

> “wild, uncultivated and unfenced and that it (the plaintiff) has no desire or intention to improve, fence or cultivate any portion thereof, and that said fence is of no value or benefit to it whatever.”

What has caused the confusion, perhaps, is the statement of the law in the second paragraph of the syllabus that if the lands are, and are to remain unenclosed then the owner cannot be lawfully charged with the expense of constructing and maintaining a partition fence.

Was the matter of enclosure alone to determine whether an owner could be charged with the expense of such construction? If so, the amendment of 1904 was a nullity. That amendment leaves out the matter of enclosure and requires the adjoining owner to keep up and maintain partition fences under all circumstances except in case of an agreement..

The matter is further complicated by two decisions rendered subsequent to the Cozad case. In *Roth et al., Trustee,*v. *Beech,*80 O. S., 746, unreported, it did not appear that the land was unenclosed. In *McDorman*v. *Bullard,*94 O. S., 183, it did not appear that the land was unenclosed. In the former case the land owner, objecting to the improvement, won on the authority of the Cozad case. In the latter case, *McDorman*v. *Bullard,*the land owner lost on the same authority. The facts are identical in each case.

The last word on the subject, so far as we know, will be found *in Zarbaugh, Treas.,*v. *Ellinger,*99 O. S., 133-138, where the *455history :.of Section 5908' and the decisions thereon are reviewed, and 'is as follows: ‘‘ 1 • •

> “From the fact that for so long a time the statutes required an owner to contribute to the cost only where the ‘fence answered the purpose of enclosing his land,’ it would seem to be apparent that at that time the general assembly felt, that the only benefit conferred on a farmer’s land by a fence was by its making a complete enclosure. The amendment to the statute in 1904, now Section 5908, *et seq.,*General Code, evidences a different view by the Legislature and a determination to impose a larger duty, namely, the view that there are conditions and circumstances in which a partition fence is of advantage and value to a landowner, even when it does not make a complete enclosure. When such a situation is presented the enforcement of the-requirements of the statute is not a violation of rights guaranteed by the constitution.”

So we take it that the question in this case is not whether the .partition fence when constructed will inclose the lands of the plaintiff, but whether his premises will be benefited by such fence — whether such fence will be of advantage and value to the farm. For if só, then Sections 5908, *et seq.,*must govern, like any other statute that is not contrary to the state or federal constitutions.

The agreed statement of facts reads as follows:

> “It is admitted that there are 53% acres of land in the tract set out in his petition and that the lands of Rebecca Williams join said land on the north and that the said Rebecca Williams has constructed half of the line fence between her land and the said 53% acres of land belonging to the plaintiff * * *.

> “It is admitted that there are 30 acres of land in cultivation of the 53% acres; that seven acres of the same are in com and six acres are in oats and fifteen acres are in meadow; that neither the said oats, corn or meadow.are enclosed; that the said corn and oats land lies adjacent to the land of the said Baird and adjacent to the fence already constructed by the said Baird. It is admitted that the said Baird is using his land adjacent to the said 53% acres of land on the south for pasturing pur; poses and that if the land- of the said Baird be pastured that there are no fences to prevent the stock of the said Baird from destroying the said crops of the said Jennings. It is also ad*456mitted that the said Jennings, plaintiff herein, intends to cultivate his land in the future, to-wit: the said *53y2*acres of land, to the same extent that he is now cultivating the same #*#>>■•

That the building of the partition fence will benefit the land of the plaintiff we entertain no doubt. If land is cultivated or to be cultivated, no one can deny that a fence is beneficial to it. A fence which partially encloses cultivated land is beneficial to some extent. If it encloses the field adjoining, it will prevent injury from stock in that field. Even if it does not enclose such field it will prevent in some degree encroachment by stock kept therein. Besires, -when a farm is fenced on one side it requires just that much less exercise of muscle and outlay of money to complete an entire enclosure, which is generally necessary to the proper cultivation of the tract. Every rod of partition fence added to a tract of land which is, and is intended for cultivation, adds that much to the value of the -farm; It is no argument' for the land owner to say that because he does not want a fence and that he will take all chances from straying live stock, the fence will be of no benefit or value to his land. Except in cases where the partition fence will be of no benefit, as when the land is wild and uncultivated and is to remain so, the owner must build his fences whether he regards them as of any benefit or not.

"We adopt the suggestion of Judge Johnson in the case last referred to, because that comports with.our view of the statute under consideration. The statute makes no mention of enclosures and is intended to operate in all cases and must do so. except in ease of land which will not be benefited by a partition fence — an exception written into the statute by the Supreme Court.

The decree will be in favor of the defendants.

The petition will be dismissed at plaintiff’s costs.

Middleton and Mauck, JJ., concur.