
    Moore v. Given.
    1. It is the duty of courts in the interpretation of statutes, unless restrained hy the letter, to adopt that view which will avoid absurd consequences, injustice or great inconvenience, as none of these can he presumed to have been within the legislative intent.
    2. Where a statute requires notice of a proceeding, hut is silent concerning its form or manner of service, actual notice will alone satisfy such requirement.
    3. In a proceeding under “an act to regulate inclosures, and to provide against trespassing animals” (1 S. & 0., 649), as amended May 3, 1873 (70 Ohio L., 246), authorizing township trustees, after notice to all parties who may have any interest in the title or possession of premises affected hy a partition fence (and in the repair or construction of such fence), to proceed to view and assign to each party, for repair, his share of it, notice to a tenant in common in sole possession of such premises, who is alone interested in the possession of them, and in ■ the repair of such fence, is sufficient to invest the trustees with power to act.
    Error to the District Court of Muskingum county.
    The plaintiff in error, who was plaintiff below, brought his action to recover against the defendant the value of labor and materials furnished by him in repairing a partition fence between his own and lands occupied by defendant, under an act to regulate inclosures and provide against trespassing animals (1 S. & C. Stat. 649), section three of which was amended May 3d, 1873 (70 O. L. 246), and provides that “when any controversy shall arise about the rights of the respective owners of partition fences, and their obligation to keep up and maintain the same in good repair, if they cannot agree among themselves, either party may apply to the trustees of the township in which said fence may be situate, who, after not less than ten day’s notice to all parties who may have any interest in the title or possession of said premises, and the repair or construction of said fence, shall proceed to view and assign to each party, in writing, his equal share of such partition fence, to be by him maintained in good repair,” and provides how one of such owners may, upon the other’s default, repair the entire partition fence, and recover from the latter a judgment for the value thereof, and acquire a lien upon the lands enclosed. The plaintiff, by the averments of his petition, showed himself entitled to the recovery sought, if service of notice on the defendant was sufficient to give the trustees jurisdiction to act. The petition alleges that the fence in question was the line fence between two parcels of land, one of which Avas owned and occupied by the plaintiff, while the defendant was, at the time of giving the notice, and for twenty years previously had been, in possession of the other, claiming to be the owner, and was, in fact, alone interested in the possession thereof, and in the construction and repair of the partition fence, and being the only person known to the trustees and to the community as owner of the title, and holding himself out as such sole owner. That defendant was at that date (Jan. 2d, 1875) the owner of four equal undivided one-sixth parts of such tract of land ; the residue of the.title being owned by persons whose residence was not in the State of Ohio, nor known to plaintiff or the trustees.
    The- court of common pleas sustained the defendant’s deunurfer to the petition, and rendered judgment for the latter, which wás affirmed by the district court. To reverse this judgments the present proceeding is prosecuted.
    
      T. J. Taylor, for plaintiff in error.
    
      Southard ds Southard, for defendants in error.
   Owen, J.

Did notice to the defendant, he being the owner of an undivided interest of the lands actually occupied by him, invest the trustees with power to view and assign to each party, for repair, his share of the partition fence 2

The defendant, by his demurrer, admitted that he received such form of notice as the law required ; that he was then and for twenty years previously had been in possession, claiming to be the owner of the land to be affected; that he was alone interested iu the possession of it; that he was alone interested in the construction and repair of the partition fence; that he was the only person known to the trustees and the community as the owner of the title; that he held himself out as the sole owner of the land, and that the owners of the residue of the title to it were persons whose residence was not within the State of Ohio, nor known to the plaintiff or the trustees.

The contention of the defendant was and is, that all persons interested in the title of the lands occupied by him should have had notice of the proposed action of the trustees before they could have become invested with jurisdiction to act.

The defendant was the sole occupant of the lands. He was, by his- own admission, the only person interested in the possession of it or in the repair of the fence. His co-tenants in common were beyond seas ; their residences unknown.

As the form and manner of notice are not prescribed by the act, actual notice could alone satisfy its requirements.

This would require of the plaintiff an impracticable, if not an impossible, thing.

That the law does not require vain, absurd or impossible things of men is one of its favorite maxims; and it is the plain duty of the courts, in the interpretation of a statute, unless restrained by the rigid and inflexible letter of it, to lean most strongly to that view which will avoid absurd consequences, injustice and even great inconvenience; for none of these can be presumed to have been within the legislative intent. Rex v. Banbury, 1 Ad. & El. 136, 142; Commonwealth v. Loring, 8 Pick 370; Jeffersonville v. Weens, 5 Ind. 547; Henry v. Tilson, 17 Vt. 479; Putnam v. Langley, 11 Pick. 490; Bishop on Written Laws, 82; Debolt v. Trust Co., 1 Ohio St. 365; Brigel v. Starbuck, 34 Ohio St. 285.

In the case last cited, Okey, J., uses this language : “ Bnt where strict adherence to the mere letter of a remedial statute will manifestly lead to serious inconvenience, interruption and delay in the settlement of an estate, we may sometimes depart from it, and we are always justified in looking to the whole statute to ascertain in what sense the words were used.”

If the defendant’s position is well chosen, and all persons interested in the title were required to bo notified, remainder-men, reversioners, mortgagees, execution creditors after levy, would be within the requirement of the act and require notice, though having no interest in the possession of the premises or the repair of the fence.

Applying, the foregoing principles of construction, and looking to the entire act and the objects to be effected, we are not called upon to do violence either to the obvious legislative intent or to the letter of the act in order to give it an interpretation in entire accord with reason and the justice of the case.

Section 2 of the act before us provides :

“ The respective owners, or lessees for one or more years, “ of lands which now are, or hereafter may be inclosed with “fences, shall keep up and maintain in good repair, all partition fences between their own and the next adjoining in- “ closures, in equal shares, so long as both parties continue “to occupy or improve the same.”

This provision raises the plain implication, that the parties -occupying and improving for their own benefit the lands ■divided by a partition fence are they who are immediately ■concerned in its repair.

Section 3 of the act provides for notice “ to all parties who may have any interest in the title or possession of said premises a,id the repair or construction of said fence?

To entitle a party to notice it is not enough that he be interested in the title or possession of the premises; he must also be interested in the repair or construction of the fence.

How the defendant came to be alone interested in the construction and repair of this partition fence does not appear. It is sufficient for us to know that he admits the fact to exist, and this leaves us at liberty to suppose that it is so by some arrangement between himself and his co-tenants in common. Notice to him was sufficient to authorize the trustees to act.

The facts stated in the petition abundantly constituted a cause, of action, and there was error in sustaining the demurrer to it and rendering the judgments complained of. The judgments of the court of common pleas and of the district court are reversed, and cause remanded for further proceedings according to law.  