*Richardson vs. M’Dougall.Headnote
Where a party removes a division fence> without having previously given three months notice, the party injured thereby is not limited to a suit for the recovery of actual damages sustained in consequence of such removal, but may, after a month’s notice, make the fence anew and recover the expense thereof by action.If actual damages are sustained, as the loss of a crop for instance, caused by the removal of the fence, an action for the recovery of such damages, as well as a suit to recover the expense of making the fence, may be sustained.
Error from the Madison common pleas. Richardson sued M’Dougall in a justices’ court for the expense of making a division fence, th'e lands of the parties joining each other, and recovered judgment. The defendant appealed to the Madison common pleas, on the trial in which court the following facts appeared : The parties own lands adjoining each other ; the parts or proprotions of the fence to be made and maintained by each had been settled, and a fence erected between their lands. In 1828 the defendant removed his part of the fence, which left the lands of the plaintiff exposed to the public commons. The plaintiff gave notice to and made a request of the defendant, to make and maintain his proportion of the fence, and the defendant neglecting to do so for the space of one month after such notice and request, the plaintiff made the fence and brought a suit to recover the expense of making it, the amount of which was proved. The defendant moved for a nonsuit, and the court being of opinion, inasmuch as it was not shown that the defendant had given three months notice of his intention to let his lands lay open, that the remedy of the plaintiff under the statute, 2 R. L. 133, § 17, was by action for the recovery of damages sustained by the removal of the fence, and not to recover the expense of making the fence which belonged to the defendant to make, nonsuited the plaintiff, who sued out a writ of error.
J. A. Spencer, for the plaintiff.
S. Chapman, for the defendant.
*By the Court,
The statute on this subject,2R. L. 133, % 17, contains the following provisions: 1. Individuals whose lands join must make and maintain a just proportion of the division fences ; 2. If disputes about the proportions to be made by each arise, they must be settled by the fence viewers of the place in which the lands are situate; 3. If a party omits to make and maintain his part or proportion of the fence, he is made liable to damages, to be appraised by the fence viewers ; 4. If he continues such neglect one month after notice, the party injured thereby may make the fence at the expense of the party neglecting, to be recovered with costs in any court having cognizance thereof; 5. If a party who has made his proportion of such division fence wishes to let his lands lay open, he may do so by giving three months notice; and 6. If he removes his fence without such notice, he is made liable for all damages sustained, to be recovered as aforesaid, with costs. As there had once been a division fence between the lands of the parties, which the defendant had improperly removed, the common pleas held that the plaintiff must sue in form for actual damages, and not for the expense of making a