McNally v. O'Brien, 88 Ill. 237 (1878)

Jan. 1878 · Illinois Supreme Court

88 Ill. 237

Hugh McNally v. James O’Brien.

1. Division fence—evidence sufficient to show. Where the evidence shows that a plaintiff, at the request of the defendant, repaired a fence made by the defendant as a division fence, and had, from time to time, put boards upon it to about half the amount used in making it, this may be considered by the jury in determining the question whether it was a division fence.

2. Error—improper instruction. Although some instructions given are not entirely accurate, a new trial will not be given when it can be seen, from the evidence and the amount of the verdict, that the jury were not misled.

Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.

This was a suit commenced by James O’Brien against Hugh McNally, before a justice of the peace, to recover the value of an alleged division fence between himself and the defendant, and also for damages for the removal of a fence by the defendant, claimed to be a division fence. The case was taken by appeal to the circuit court, where a trial was had, resulting in a verdict and judgment of $84.61 for the plaintiff, to reverse which the defendant appealed to this court.

The evidence on the trial showed, that about seven years before, the defendant had bought and fenced eighty acres of land, and that some time afterwards .the plaintiff purchased forty acres of land, adjoining the defendant’s east forty on the south, and inclosed it on defendant’s south fence. After this, defendant requested the plaintiff, as he was having the use of the fence, to keep it in repair, and in pursuance of such request the plaintiff did repair the fence, from time to time, until about half the boards on it had been put there by him.

In July, 1875, owing to a difficulty, the defendant, without notice, tore down the fence, whereby the plaintiff lost the use of his pasture. In February, 1876, the plaintiff built his half of the line fence, and notified the defendant to build his part, and the defendant refusing, the plaintiff, after waiting a couple of months, proceeded to build it, under the statute.

Mr. Thomas J. Smith, for the appellant.

Messrs. Sweet & Day, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

Whether the fence in controversy was a division fence, and was so treated by the parties, was a question of fact for the jury, and in view of the character of the evidence given, we must regard the verdict as conclusive. The testimony is conflicting, but there is evidence that would justify the finding that it was treated as a division fence. There is some evidence that plaintiff, at the request of defendant, repaired the fence as a division fence, and that he had, from time to time, placed boards upon it, to near or quite half the amount used in making it. What weight was to be given to such testimony was, of course, for the jury, and no sufficient reason is perceived for disturbing their conclusion.

It must be conceded, some of the instructions given for plaintiff are not entirely accurate, but, on carefully considering the evidence, and in view of the amount of the verdict, we can not believe the jury were misled as to the true rule for measuring the damages. The verdict is small, and no sufficient reason appears for setting it aside.

The judgment will be affirmed.

Judgment affirmed.