Roberts, Harry W., Jr.

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University of Kentucky

Kentucky Law JournalVolume 29 | Issue 3 Article 81941Interpretation of Kentucky Statutes ConcerningDivision FencesHarry W. Roberts Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Property Law and Real Estate Commons, and the State and Local Government LawCommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationRoberts, Harry W. Jr. (1941) "Interpretation of Kentucky Statutes Concerning Division Fences," Kentucky Law Journal: Vol. 29 : Iss. 3 ,Article 8.Available at: https://uknowledge.uky.edu/klj/vol29/iss3/8KENTUcKY Lw JOURNALin scope. Here is a practical objection which might be removed bythe adoption of a uniform act.It is submitted, therefore, that the statutes relating to jurisdictionover nonresidents should undergo study and revision by a nationalcommittee; that the revised statutes should employ the doing of anact theory as one of the bases upon which nonresidents are to be sub-jected to the jurisdiction of courts at the locus of the wrong, for thereasons previously pointed out; and, finally, that such a modelstatutory section, thus compiled, should be presented in the form of auniform act" for adoption by all the states.HOWARD E. TRENT, JR.INTERPRETATION OF KENTUCKY STATUTES CONCERNINGDIVISION FENCESAt common law there was no duty upon the landowner to erectand maintain fences between himself and his neighbor. Eachowner was bound at his peril to keep his cattle upon his own landswhether the lands of his neighbors were fenced or unfenced.' How-ever where an owner of land and his grantors have for more thantwenty years maintained a specific portion of a partition fence aspurious kind of easement may arise by prescription.? The ease-ment seems to be founded upon the duty which at common lawrequired the owner of a close at his peril to keep his cattle thereon,and to prevent them from trespassing on an adjoining close; andwhen the owner of the latter erected a fence for his protection, andmaintained it for the prescriptive period, he was deemed to havedischarged his neighbor from his original duty, and to have becomebound to protect his own close.?In Kentucky the matter of division fences, their constructionand maintenance is governed by statute. Section 1784 of the Ken-tucky Statutes applies to improved lands and provides:"When a division fence is desirable, or is made necessary bythe division of improved or enclosed lands, or no fence or divisionfence exists between the improved or enclosed lands of adjoiningowners . . . either party may after he has built a lawful fenceupon his portion of the line require the other to erect a lawfulfence . . . upon his portion of the line . . . and if he failsto do so, after three months notice, in writing, may erect suchfence, and the cost of erecting such fence shall constitute a lien,superior to all others, upon the land of the recusant in favor ofthe party erecting such fence, and shall be enforced as otherliens."'" For an interesting discussion of uniform acts and their desir-ability, see Williston, Life and Law (1940) 217-219.'Harper, Torts (1933) sec. 166.2 Carter v. Riegel, 54 N. J. L. 498, 24 Atl. 484 (1892).'Carter v. Riegel, 54 N. J. L. 498, 24 AUt. 484 (1892); see note 68Am. Dec. 626 at 628 (1885).'Carroll's Kentucky Statutes (Baldwin, 1936) sec. 1784.STUDENT NOTESSection 1786 is limited in application to unimproved lands, andprovides:"No one shall be compelled to contribute to the erection of apartition fence unless he desires to have his land enclosed; butwhenever the owner of unenclosed lands desires to enclose themhe shall not be permitted to unite his outside boundary fencesto the fences of anyone else, unless he pays to the owner of suchfences the fair value of one-half of all fences that would thusbecome partition or division fences, and consent, in writing tothereafter upkeep and maintain one-half of same. Neither partyshall remove same without the consent of the other except be-tween the first of December and the first of March of the ensuingyear!These two sections appear to be inconsistent since a party underthe authority of Section 1786 could defeat the operation of Section1784 by simply stating that he did not desire to have his landsenclosed. The Court of Appeals of Kentucky in Sturgill v. Sturgifl'reconciled these sections by finding:"Section 1784 clearly applies only to improved or enclosedlands (that is, land suitable for cultivation as distinguished fromunimproved or "wild" lands) while Section 1786, except in thelast clause at least, can apply only to the reverse, (that is, unim-proved, or "wild" lands), if the two sections are to be preservedand harmonized; otherwise they are antagonistic and reduce thewhole law to a nullity.17Thus harmonized and reconciled both statutes have an operative andan effective meaning so that the permanent fencing of improvedlands is the paramount objective of the entire act. But it will benoted that the dicta of the Sturgill case was doubtful of the applica-tion of the last clause of Section 1786 to unimproved lands alone.Quite possibly this is due to the interpretation given that clause bythe Court of Appeals in Clemmons v. Grow.The language is comprehensive enough to embraceany one of the partition fences to which we have referred (inclos-ing unimproved or improved lands). It can not be said that itrefers alone to the partition fence for which, in part the ownerof unimproved lands is required to pay when he desires to inclosethem by uniting his outside boundary fence to the fence ofanother, by the doing of which his unenclosed lands would there-by become inclosed.""If this interpretation is followed, the law again reverts to a hope-less confusion. Suppose that A and B are adjoining owners. A linefence exists between their two closes. In May, A and B quarrel andA, to spite B gives him notice that under the authority of Section 1786he will remove his portion of the line fence in January of the follow-ing year. After A has removed his portion of the fence, B gives him'Carroll's Kentucky Statutes (Baldwin, 1936) sec. 1786.'Sturgill v. Sturgill, 180 Ky. 170, 202 S. W. 311 (1918).Sturgill v. Sturgill, 180 Ky. 170, 202 S. W. 311, 313 (1918).Clemmons v. Grow, 102 Ky. 499, 43 S. W. 728, 729 (1897).KENTUCKY LAW JOURNALnotice to build that portion of the fence under Section 1784. UponA's failure to so build the fence, B builds it for him and enforcesthe lien against A's land as provided for in Section 1784. A againproceeds under Section 1786 to remove this fence, and B, by theauthority of Section 1784 rebuilds it for him and enforces his lien.Such a conflict of statutes was obviously not the intention of thelegislature, and yet in Clemmons v. Grow' the court recognized thatsuch a situation was possible under its interpretation.The purpose of the legislature according to the Sturgifl case is tobe found in Section 1784,0 of the fencing act providing for the fenc-ing of improved lands, that is lands suitable for cultivation. If thisbe the purpose of the act, then the last clause of Section 1786 as inter-preted by the Ciemmons case defeats that purpose. These two sec-tions must be reexamined in order to reconcile them in that particular.There can be no doubt as to the meaning of Section 1784. Thelanguage used in that section is clear and is without conflict. Con-sider, then, the language of Section 1786. After discussing the con-struction and the maintenance of a division fence inclosing unim-proved or "wild" lands the first sentence ends, ". .... and consentin writing, to thereafter upkeep and maintain one-half of same."It is clear that the adjective "same" is being used substantively.uIts clear meaning is derived from its antecedent which is in this casea division fence in unimproved lands. The second sentence begins,"neither party shall remove same. . ." Here again "same" is beingused substantively as the object of the verb "shall remove." Its ante-cedent is the subject just referred to which is in this case a divisionfence in unimproved lands. The meaning of the word which is "notdiffering in kind," "indistinguishably alike," as well as its use in thisparticular instance demands that it be used to refer to a division fenceinclosing unimproved lands, and contrary to the court in theClemmons case, the language is not comprehensive enough to embraceany partition fence mentioned in the act. "Same" substantivelyrefers to the noun just mentioned. The antecedent of "same" par-ticularly limits that sentence to division fences of unimproved lands.It seems that the court in the Clemmons case was concerned bythe fact that when unimproved lands became fenced they thereby'Ibid." Sturgill v. Sturgill, 180 Ky. 170, 202 S. W. 311, 313 (1918):S..but that section (1784) expresses the main purpose of thewhole act (i.e., to permit one adjoining landowner to require the otherto join in the erection of a division fence under two states of cases:first, where such a fence is desirable or . . . made necessary bythe division of "improved or enclosed lands;" or second, "When nofence or division fence exists between such lands.""Webster's New International Dictionary (1927) 1785, "Same(a) . . ." Just mentioned or about to be mentioned.'Do not think how well the same he spendsWho spends his blood his country to relieve.'Same is commonly preceded by "the, this, or that, "and is often usedsubstantively as in the citation above."STUDENT NoTEsbecame inclosed lands and would thereafter be subject to the require-ments of Statute 1784. It is true that by fencing these lands theybecome inclosed but that does not mean that their essential character-istics will be changed. If they are "wild" lands unsuitable for culti-vation before they are fenced they remain so after they are inclosedand their classification as unimproved lands is not made more dif-ficult by the fact that they are fenced.It has been necessary for the legislature to provide for theremoval of fences in "wild" lands because in this state there are greattracts of such land which it is neither desirable nor practicable tofence permanently, although a temporary fence might be expedientto serve a particular purpose. But when that purpose is passed themaintenance of such a fence would constitute an unreasonable burdenon the land. It was to take care of this situation that the legislatureenacted 1786 so as to provide a means by which an owner of unim-proved lands might fence temporarily such lands and not be forcedto maintain such a fence for an indefinite period of time when itserved no beneficial purpose to him.The intent and the purpose of the legislature as declared by thecourt in the Sturgill case is destroyed and the law pertaining to divi-sion fences in Kentucky is reduced to a hopeless confusion if theinterpretation of Clemmrons v. Grow of Section 1786 is followed.Both the spirit and the latter of the law shows that such an interpre-tation of the act is wrong and leads to an absurdity. Therefore theillogical reasoning of Clemmons v. Grow should be rejected, and as inthe Sturgill case the two sections should be harmonized and recon-ciled so as to leave both statutes operative and at the same time giveeffect to the general purpose of the act.HARRY W. ROBERTS, JR.u Clemmons v. Grow, 102 Ky. 499, 43 S. W. 728, 729 (1897).

Interpretation of Kentucky Statutes Concerning Division Fences

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Interpretation of Kentucky Statutes Concerning Division Fences

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