#### Alexander De Mers v. Timothy Rohan, Appellant.

Division fences: partition. There are but two methods of di_ 1 viding partition, fences, one by order of the fence viewers, and the other by written agreement as provided by Code, sections 2356 and 2361; and a division based on a mere understanding of one landowner with the tenants of the other is of no effect.

Duty to maintain. Where there has b.een no legal partition of a 2 division fence, the duty of maintaining the entire fence rests on both owners alike, and neither can complain of the neglect of the other.

Trespassing, animals: liability of owner. Where there has been 3 no legal partition of a division fence and the stock of one adjoining owner break through onto the land of the other and then into an enclosure surrounded by a lawful fence, the owner of the stock is liable for the damage done.

Evidence: distraint. In an action for damages from trespassing 4 cattle, an explanation of why the cattle were not distrained as soon as discovered, was properly admitted.

*Appeal from Woodbury District Court.-*— ■ Hon. Geo. W. WaKeeield, Judge.

Wednesday, February 8, 1905.

Action to recover damages caused by trespassing cattle. ' From judgment as prayed, defendant appeals.—

*Affirmed.*

*Sullivan &*Griffin, for appellant.

*Geo. W.*Argo, for appellee.

Ladd, J.—

1‘ sencST par-The farm of Fortin, occupied by plaintiff as tenant, joins that of defendant on the south. A railroad runs through both- farms. Defendant" built the line fence from the railroad to the west, and Fortin or his grantor that to the east. But the evidence fails to establish any agreement between them as to what portion each should erect or maintain. The only *489evidence on tbis snbj eet is that of defendant, vího testified: “ I bad an arrangement tbrongb tbe renters as to wbicb part of tbe fence I sbonld maintain. Mine was west of tbe railroad track, and bis was east. I bnilt and maintained tbe west part, and they bnilt and maintained tbe east part. It bad been kept that way ever since I bongbt tbe farm in 1885.” No authority for tbis was traced to Fortin or bis grantor, and tbe evidence indicated tbat tbe fence east of tbe track bad never been a legal fence. Tbe court instructed tbe jury tbat tbe evidence showed “ an agreement between tbe owners of the land assigning tbe maintenance of tbe'respective portions of tbe fence.” We cannot concur in tbis view. But two modes of dividing partition fences are recognized by statute — one by written agreement, and tbe other by order of tbe fence viewers. Sections 2356, 2361, Code. Neither of these was followed. Nor can it be said tbat tbe duty to maintain tbe fence to tbe east arose by prescription. Such an inference is obviated by proof tbat it never complied with tbe statutory requirements, and tbat it was erected- in pursuance of an oral agreement with tenants. See *Rust v. Low,*6 Mass. 90.

2. Duty to TAIN. Tbe mere fact that Fortin or bis grantor constructed a fence of some kind will not support tbe inference tbat it was erected in pursuance of an agreement with either of them dividing the line, for either adjoining owner, in the absence of -division, has tbe right to build # 7 ° such portions of the fence as be may see fit, and tbe duty of maintaining every portion of it rests on both alike. Neither is in a situation to complain of neglect in not so doing on the part of the other. *Sturtevant v. Merrill,*33 Me. 62; *Thayer v.*Arnold, 4 Metc. (Mass.) 589; *Lawrence v. Combs, 37*N. H. 335 (72 Am. Dec. 332). See note to *Tonawanda R. Co. v. Munger,*5 Denio (N. Y.) 255 (49 Am. Dec. 239), and to *Myers v. Dodd,*9 Ind. 290 (68 Am. Dec. 624).

Tbe authorities are in conflict as to whether an oral agreement dividing a line fence is within tbe statute of *490frauds. In tbe negative will be, found: *Ivins v. Ackerson,*38 N. J. Law, 220; *Guyer v. Stratton,*29 Conn. 421. In the affirmative: *Osborne v. Kimball,*41 Kan. 187 (21 Pac. Rep. 163); *Glidden v. Towle,*31 N. H. 147, 163; *Knox v. Tucker,*48 Me. 373 (77 Am. Dec. 233); *Pitzner v. Shinnick,*41 Wis. 676. There is no question but our statute contemplates a written agreement. Section 2361 of the Code provides that *“*the several owners may, in writing, agree upon the portion of the partition fence between their lands which shall be erected and maintained by each, which writing shall describe the land and the parts of the fences so assigned, be signed and acknowledged by them, and filed and recorded in the office of the recorder of deeds of the county or counties in which they are situated.” In providing for a written agreement, and specifying the circumstances under which it will be binding, the intention to exclude any other is manifest. Possibly an agreement in parol, when executed, may be good between the immediate parties thereto. Such was the holding in *York v. Davis,*11 N. H. 241. As it affected the immediate parties only, however, the court decided that the jurisdiction of the fence viewers to make a permanent division was not ousted. In *Pitzner v. Shinnick,*41 Wis. 676, the question as to whether a mere parol division will bind third persons who may become owners or lessees of the premises, and have in no way recognized or acted upon the division, was decided in the negative, and we deem this the correct rule. ■ The statute has pointed out the methods of establishing a permanent partition, and to effect this, one of these should be followed.

s trespassing bFii&wkey;f: ha" owner' In the instant case plaintiff knew nothing of any previous arrangement by defendant with the tenants preceding him, and it was in no way obligatory on him. The court, then, was error ^11 assuming that, as to the parties this action, there had been any partition of the line fence. The error, however, was without prejudice. The evidence tended to show that the cattle *491passed over the line between the farms east of the tract upon that of plaintiff, and thence to the yard near his house. This was surrounded by a fence which the jury might well have found met the requirements of the statute. Through it defendant’s cattle broke, and therein' damaged plaintiff’s feed and grain, as was alleged. Had there been a partition of the line fence, and had the cattle escaped because of plaintiff’s neglect to maintain his portion, there would be ground for the contention of appellant that there Could be no recovery, even though the yard were inclosed- with a lawful fence, though the court instructed otherwise. See *Singleton v.*Williamson, 7 Hurlst. & N. 410; *Ricketts v. Ry.,*19 English Ruling Cases, 18; *Page v. Olcott,*13 N. H. 399. If such were the case, the escape of the cattle on plaintiff’s premises would have been owing to his own neglect to main- . tain the partition fence, and the damages to the property in the yard, according to t^ decisions cited, even though inclosed by a sufficient fence, me natural consequences flowing from such neglect. Said Pollock, C. B., in the first case:

When wrong is done, and consequential damage sustained, the law inquires who committed the first wrongful act and thereby occasioned the mischief? In this, instance the defendant, who was the owner of a close called “ Bridge Green,” was bound securely to fence it so that the cattle of the plaintiff, who was owner of an adjoining close, might not be able to stray into it. This the defendant neglected to do, and in consequence the cattle of plaintiff strayed in Bridge Green, and from thence into another close of the defendant, called Cornfield. It is argued that the cattle getting into the cornfield was not a necessary consequence of defendant’s neglect to keep up the fence of Bridge Green. Certainly it was not a necessary consequence; it was not a *causa, causans;*but it was a *sina quo non.*If a pit be dug in a highway or any place where persons have a right to pass, it is not a necessary consequence that any one should fall into it, although it may be that, either in the niq-ht or day time, someone would do so. In such a ease it is sufficient if the injury is the accidental result of the wrongful act.

*492The New Hampshire ease is precisely in point. There the sheep of the defendant escaped from his inclosure into the plaintiff’s pasture lands, through the insufficiency of that portion of the fence which the plaintiff was bound to repair, and thence into the *locus in quo.*The court after full consideration, concluded that the

The plaintiff’s negligence must be regarded as that occasioning the damage sustained. It is a fair presumption which the law will make that if the plaintiff had performed her duty properly, in repairing her part of the division fence, the sheep would not have escaped from the pasture of the defendant, and the damage complained of would not have been sustained. And it is clear that while, under the circumstances of the case, the plaintiff is, in law, to be regarded as having contributed to the result of which complaint is made, she can have no action for the damage sustained, against the defendant, who has not occasioned it either by positive wrongful acts or by any negligence whatsoever.

In the instant case, however, there was no partition of the line fence, and the omission to keep it in repair was not due to any neglect on- the part of the plaintiff of which defendant might complain; and in view of the holding of this court in *Wagner v. Bissell,*3 Iowa, 396, and like cases, the defendant was not bound to restrain his stock. They were running at large. This did not shield tire owner, however, from liability, if they broke the close of plaintiff surrounded by a lawful fence. *Frazier v. Nortinus,*34 Iowa, 82; *Herold v. Meyers,*20 Iowa, 318. That they ¡altered such close and committed depredation is not disputed. The only issues for the jury were Hie sufficiency of the fence inclosing the yard, and the amount of damages, and these were fairly submitted. That the line fence furnished no obstruction to cattle was undisputed, and for- this reason the jury must have based their decision upon a finding of the sufficiency of the yard fence.

*493
      *i e*• ce d's tramt.
      *492II. The rulings on the admissibility of evidence were *493correct. Tbe testimony of tbe illness of plaintiff’s wife was ProPerV received, as explaining wby tbe cattle were allowed to remain at tbe corn pile after being discovered.

That concerning defendant’s forceable taking of bis cattle from plaintiff’s inclosure was so connected witb tbe restraint and trespass of tbe stock as to be admissible as a part of tbe transactions.

That part of tbe motion for new trial based on alleged surprise and newly discovered evidence was properly denied. It is possible tbat defendant did not personally know tbat tbe petition claimed damages caused by tbe cattle breaking through tbe inclosure of tbe yard, but of this counsel must bave been aware. At any rate, they were soon apprised by the evidence introduced, and if so taken by surprise as'not to be able to safely proceed witb tbe trial, a continuance should have been asked. For all that appears, the additional evidence, by tbe exercise of ordinary diligence, could bave been procured.

Finding no prejudicial error, tbe judgment is *affirmed.*