
    Isaac Robb v. Henry Brachmann.
    1. In an action brought under the act of May 3, 1859 (S. & C. 81, 648), to recover one-half the value of a partition fence, the appraisal of the township trustees duly made, in pursuance of the provisions of the act, is, unless impeached for mistake or fraud, conclusive with respect to value, and of the fact that the fence, in character and quality, meets the requirements of the statute; but such appraisal is not evidence of any other fact.
    2. The plaintiff in such action is not precluded from recovering, by the fact that the fence is a better or more expensive one than would have satisfied the requirements of the statute.
    •3. Nor does the fact that the fence does not conform .to the boundary line between the lands of the respective parties necessarily constitute a defense to such action. It is sufficient upon this point if it was constructed and maintained as and for such line fence, and was recognized and acquiesced in as such by the defendant.
    Error to the Common Pleas of Highland county. Reserved in the District Court.
    The original action was brought by Robb, the plaintiff in error, under the first section of the act relating to fences and inclosures (S. & C. 648), to recover one-half the value, as adjudged by the township trustees, of a fence erected by him, and which constituted, as he alleged, a partition fence between his and the defendant’s inclosures.
    The facts alleged in the petition, that the fence was constructed by plaintiff, and that the trustees had, at his instance, made the appraisement and valuation upon which suit was brought, were not denied. All the other averments of the petition were put in issue by the answer.
    It was agreed between the parties upon the trial, that the fence in question was 160 rods in length; that 90 rods of it was a plank and post fence, and the remainder a worm rail fence ; that the total cost and value of the fence was $237.26, one-half of which was the amount demanded in the petition; and that a good and sufficient fence — such as a good husbandman ought to keep, made entirely of rails — could be-built the whole length of said line for $70.
    The plaintiff gave evidence tending to show that the-fence stood upon the line which both parties had recognized, acquiesced in, and treated as the boundary line between their respective lands, and which was, in fact, the-true boundary; that defendant’s fences, constructed for the purpose of inclosing his lands, were connected with the fence in question, so that the latter answered, and was-made use of, to inclose the fields of the defendant.
    The defendant gave evidence tending to prove, ámongother things, that the fence in question was not upon the-boundary between his and plaintiff’s land; that the true boundary line was about two rods south of the fence; that in so far as he had recognized the line of the fence as the-true boun dary, he had acted in ignorance of the facts; that he did not reside upon his said land, but some forty miles distant therefrom; that until after the appraisal of said fence by the trustees, he did not know where said fence was located; that he did not construct or authorize the construction of any fence on his land connecting with the-fence in question, but that some were erected by his tenants for their own purposes and without his authority.
    The testimony having been closed, the court was requested, on behalf of the plaintiff) to charge the jury as-follows:
    “ 1. If the plaintiff' has shown to the satisfaction of the-jury that due notice was given to the defendant of the time and place of meeting of the township trustees to view and assess the value of the fence described in the pleadings,, then 'the assessment of said trustees of the value of said fence is conclusive evidence that said fence was such a one in all respects as a good husbandman ought to keep; that it was erected by the plaintiff, and then was on the line . of his (the plaintiff’s) land adjoining the defendant’s land; that the defendant had made an inclosure on the opposite side of said fence, so that said fence answered the purpose of inclosing his (JSrachmann’s) field, meadow, lot, or other inclosure, and that the one-half of said fence was of the value ■of $118.63, and that none of these facts can be questioned in this case.”
    This instruction being refused, plaintiff excepted, and thereupon, by his counsel, requested the court to charge :
    “ 2. That to entitle the township trustees to assess the value of one-half of such fence under the act referred to, they (said trustees) must first have found that said fence was in all respects such as a good husbandman ought to ¿keep; was erected by the plaintiff on the line of his land .adjoining the defendant’s land; that the defendant, Brachmann, who owned the adjoining land, had made an inclosure -on the opposite side of sail fence, so that said fence answered the purpose of inclosing his (defendant’s) field, meadow, lot, or other inclosure, and that the making of said assessment by said township trustees is prima fade evidence of all the facts above stated as necessary to be found by said trustees as a condition precedent to making said as-sessment.”
    This instruction was also refused, to which plaintiff ex-cepted.
    Plaintiff also requested the court to charge the j ury:
    “ 3. That in ascertaining whether said fence was put upon the boundary line between the lands of the plaintiff and defendant, they will not be controlled alone by the boundaries called for by the deeds of the parties, or those under whom they claim respectively; but if the defendant, by his declarations or conduct, recognized the line claimed by the plaintiff to be correct, and for several years acquiesced -therein, that is the true line within the meaning of the statute aforesaid, so as to make him (the said defendant) liable do assessment under said statute.”
    This instruction the court refused to give, and upon this ■subject instructed the jury as follows :
    “ One of the issues in this case is, whether the fence in ■question is upon the line between the lands of the plaintiff and defendant. In determining this it is proper for you to ■consider all the evidence relating to it; not only the deeds put in evidence, but tbe acts and declarations of the defendant, written or oral, in reference to the place of the line' (if any such were made), are proper also to be considered by you in finding whether the fence was put upon the line. If from all the evidence, the jury should find that the fence is-upon the line in question, and put there by the plaintiff, as claimed by him, then, so far as this question is involved, the-plaintiff is entitled to recover; or if you should be satisfied from the proof that the plaintiff built the fence as and for a partition fence, and the defendant, or his authorized agent, with power in the premises, with knowledge that the same was built as such partition fence, adopted it as'a line fence between the plaintiff’s and defendant’s lands, and joined up to it and used it to inclose the defendant’s lands, and the defendant acquiesced therein for years, as claimed by the plaintiff’ the jury should consider these circumstances also-in determining the place of the line and whether the fence-is on it.”
    The plaintiff excepted to the instruction given and to-the refusal of the court to give to the jury, upon the point, therein referred to, the last requested instruction.
    The court, at the request of counsel for defendant, further instructed the jury as follows:
    “ If the jury are not satisfied, by a preponderance of evidence in this case, that the said fence was not only such a one as a good husbandman ought to keep, but that it was' not a more costly one or a different kind of a one than a-good husbandman — under the custom of the country and the eighth section of the act of January 17, 1840, which reads as follows: ‘ If, in the opinion of said fence-viewers, such fence is of sufficient height and strength, and in every respect such as a good husbandman ought to keep, they shall proceed, upon view and inquiry, to assess, damages sustained by such applicant from such trespassing animal or animals; which assessment, including the sum due for their services, they shall make out and certify in writing, subscribe their names thereto, and deliver the same to the person sustaining such dam age’ — could have been required to-keep in the neighborhood where it was built, the plaintiff can not recover anything in this action.”
    This instruction was also excepted to by the plaintiff.
    The verdict and judgment were for the defendant.
    It is now insisted, on behalf of plaintiff, that the court erred in refusing to give to the jury the foregoing several instructions requested by him, and in giving the instructions hereinbefore recited.
    
      Harrison $ Olds, for plaintiff in error:
    1. The court erred in refusing to give the instruction first asked by the plaintiff. The fact that a line is uncertain, or in dispute, does not prevent the erection of a partition fence under the statute, nor the recovery by the person who may erect it, from the other, of his just proportion of the expense of making it. And the certificate of the fence-viewers is conclusive as to the line for the purposes of a partition fence. Baker v. Labeman, 12 Met. 195; Stephens v. Shriver, 25 Penn. St. 78; Corlis v. Little, 2 Green (N. J.), 229; Sanborn v. Fellows, 2 Poster (N. H.), 473; Fox v. Beebe, 24 Conn. 271; Nelson v. Stewart, 2 Murphey (N. C.), 298.
    2. The refusal to give the second instruction asked for by plaintiff was error. The valuation or assessment by the trustees was at least prima facie evidence of the facts necessary to be found and determined by them. See Hall, J., in Nelson v. Stewart, 2 Murphey, 298.
    3. The defendant, by his declarations and conduct, for several years recognized the division line claimed by plaintiff^ and thus made that the line within the meaning of the statute. Eaton v. Rice, 8 N. H. 378; Wright v. Wright, 21 Conn. 329; Schuan v. Gelman, 9 Iowa, 283.
    4. The second instruction asked for by the defendant ought not to have been given.
    
      J. 11. $ C. Bates, for Brachmann :
    1. The only matter left to the trustees, under the statute, is the question of the then value of the fence. If, as claimed by the other side, the assessment by the trustees is con-elusive that all the statutory requirements had been complied with, the statute is unconstitutional, because it furnishes no means for obtaining a trial by jury. Lamb v. Lane, 4 Ohio St. 167; Shaver v. Sturrett, Ib. 494; Reckner v. Warner, 22 Ohio St. 275.
    Nor did the court err in refusing to instruct the jury that if the fence was a more costly one, etc., it can not affect the liability of defendant, or in giving the instruction on the same subject asked for defendant. The statute intends that the fence to be paid for is such a one as a good husbandman ought to keep — not an unnecessarily expensive fence. No good husbandman would voluntarily erect such a one, for economy is one element of good husbandry.
   Stone, J.

"We think the court did not err in refusing either of the first two instructions requested on behalf of the plaintiff! No trial before the trustees is contemplated by the statute, and they are not authorized to hear or determine any question of fact which will, in any case, require the taking of testimony. No provision is made for calling witnesses before them, or compelling them to testify. They are called upon, under the provisions of the statute, to act in their character as fence-viewers. It is expected they will go upon the premises where the fence is to be found; that the particular fence which is the subject of inquiry will be pointed out to them by the parties or by the party invoking their action; and they are to proceed, upon actual view and personal examination, to determine the matters submitted to them. They are to determine the value of so much of the fence as serves as a partition fence; but the fence they are thus required to appraise, of whatever materials it may be composed, must be a lawful fence — that is to say, such a fence “ as a good husbandman ought to keep.” Other prerequisites must exist to entitle the party suing under the statute to recover; but the question whether the fence is of such character and quality as to fill the requirement of the statute is one which falls peculiarly within the province of the trustees to determine. . It connects itself •immediately with the appraisal, and is best determined upon actual view. We are, therefore, of the opinion that the .adjudication of the trustees made in pursuance of the statute, unless impeached for mistake or fraud, must be regarded as conclusive, not only with respect to value, but of the fact that the fence is of sufficient height and strength, .and has in other respects the qualities necessary to meet the requirements of the statute.

Whose property the fence is or who erected it, whether the adjoining premises belong to the party sought to be ■charged, or whether the adjoining inclosure is to be regarded as his inelosure or not, are questions in relation to which there is, ordinarily, but little room for controversy, but they, and any others of a similar character which may •arise, are questions not to be determined by a mere examination of the premises, and with respect to them, the adjudication of the trustees, fixing the amount which ought to be paid as one-half the value of the fence, can not conclude or affect the rights of either party.

The instruction given by the court in response to plaintiff’s third request was correct, if it was essential to the right of the plaintiff to recover that the jury should find that the fence was on the exact line between his and the defendant’s land; but this, in our judgment, was not necessarily, upon this subject, the controlling question. If the line was in dispute, this was not a case in which that ■controversy could be settled. Whether in dispute or not, a partition fence between the respective inclosures of the parties, if such inclosures they had, was equally useful and necessary; and the fact that the line was in dispute, or that the fence did not stand on the line to which either party might rightfully claim, furnished no reason, if it was in fact a partition fence, why it should be constructed and maintained at the expense of one party only. Stevens v. Shriver, 25 Penn. 78. If it stood upon a line which the parties practically recognized and acquiesced in as the boundary line between their respective lands, it was, so far as concerns this point, within the provisions of the statute. Any other construction of the statute would, in numerous-cases, defeat its evident object. A proceeding authorized-for the mere purpose of equitably adjusting, as between the parties, the expense of partition fences, and designed to be made as simple and inexpensive as practicable, would,, in each case, involve whatever litigation might be necessary to settle the boundary line; and although it might be-ascertained as the result of such litigation that the fence-did not conform to the true boundary, it might still be true that it stood upon a line practically recognized by the-parties as the boundary, and was in fact a partition fence.

Whether, under the testimony, only partially reported in the bill of exceptions, the instruction on this point requested on behalf of the plaintiff’ was in all respects appropriate, we do not deem it necessary to determine. The instruction given in response thereto, for the reasons already indicated, could hardly have failed to mislead the jury.

The instruction given at the request of the defendant, and recited in the statement of the case, was in our judgment erroneous. If that instruction be correct, it is not sufficient, in an action of this kind, for the plaintiff to show that the fence is as good as the statute requires. It must not be better. If it be stronger, higher, or more durable,, or if it occupy less ground, and is by reason of any of these-facts a more expensive fence than would satisfy the requirements of the statute, the adjoining proprietor may connect hiff'fences with it, may make it serve to inclose his fields, and may thus use it at his pleasure without incurring any obligation to pay any portion of its value. Such, clearly, is not the law. Where a partition fence is erected by one party, the obligation of the other party to pay one-half its-value where such obligation exists, is voluntarily incurred. If the adjoining proprietor chooses to connect his fences with it, and use it to inclose his fields, the obligation which he incurs, at the option of the owner, is, in effect, to purchase and pay for one-half of it. If for any reason he prefers not to incur this obligation, he has only to decline to use-it. So far as it stands upon his land, he may have it removed, and make Ms inclosure with Ms own fences and in Ms own way.

It is also to be observed in this connection, that whateverj its character, the fence in question, in any case arising| under the statute, is to be dealt with as a fence. It.is to be appraised by the township trustees; but the question which it is their duty to determine, is not what the materials are worth for any other purpose, and not, necessarily, what the materials and labor cost, but what, in the condition in which they find it, is its value as a fence. This may or may not equal the cost, depending, among other things, upon what economy was used in its construction, the suitableness of the materials, the character of the work, and. whether, by reason of decay or other cause, it has deteriorated in value.

Judgment reversed and new trial ordered.  