Partition fences within the meaning of this chapter are fences erected on the line between lands owned by different persons.(Code 1852, §1109; Code 1867, §1292; Code 1876, §1597; Code 1886, §1375; Code 1896, §2123; Code 1907, §4244; Code 1923, §7974; Code 1940, T. 47, §251.)Section 35-7-2 Section 35-7-2Joint owners authorized to make repairs.
Where a partition fence has been, or may hereafter be established by agreement of adjacent owners of land, each to keep up a particular part of such fence, if either fails to keep such part assigned to him in good repair, it shall be lawful for the other joint owner to repair such fence, the cost thereof to be paid by the one so failing; and if they cannot agree as to the amount to be paid for such repairs, the same is to be ascertained and collected as provided by this chapter.(Code 1876, §1596; Code 1886, §1374; Code 1896, §2122; Code 1907, §4243; Code 1923, §7973; Code 1940, T. 47, §250.)Section 35-7-3 Section 35-7-3Expenses to be borne proportionately by adjoining owners.
Partition fences between improved lands are to be erected and repaired at the joint expense of the occupants; or if any person makes a fence a partition fence by joining to or using it as such, he must pay to the person erecting it his proportion of the expense, taking into consideration the condition of such fence at the time it is so joined to or used.(Code 1852, §1105; Code 1867, §1288; Code 1876, §1592; Code 1886, §1370; Code 1896, §2118; Code 1907, §4247; Code 1923, §7977; Code 1940, T. 47, §252.)Section 35-7-4 Section 35-7-4Ascertainment of amount to be paid upon failure of parties to agree.
If the parties cannot agree, on application by either to the district court in the county in which such fence is, such court must issue an order in writing to three disinterested freeholders of such county, not related to either of the parties, to examine such fence, and to ascertain the amount to be paid to the owner erecting the same; and such freeholders, on a day to be by them appointed, of which both parties must have notice, must examine such fence and report to the court the proportionate amount to be paid to the person erecting the fence; and if such amount is not paid within 10 days after such report, the court must issue execution therefor, with costs, as provided in section 35-7-5, to be collected and returned as other executions.(Code 1852, §1106; Code 1867, §1289; Code 1876, §1593; Code 1886, §1371; Code 1896, §2119; Code 1907, §4248; Code 1923, §7978; Code 1940, T. 47, §253.)Section 35-7-5 Section 35-7-5Fees.
The district court is entitled to $.50 for issuing the order, and the fence-viewers to $1.00 each; one half of which is to be paid by each party; and not being paid in 10 days after the report, execution must issue therefor, with costs for issuing such execution.(Code 1852, §1107; Code 1867, §1290; Code 1876, §1594; Code 1886, §1372; Code 1896, §2120; Code 1907, §4249; Code 1923, §7979; Code 1940, T. 47, §254.)Section 35-7-6 Section 35-7-6Oath of viewers.
The fence-viewers, before proceeding to act, must take an oath, which may be administered by one to the other, to discharge their duties fairly and impartially.(Code 1852, §1108; Code 1867, §1291; Code 1876, §1595; Code 1886, §1373; Code 1896, §2121; Code 1907, §4250; Code 1923, §7980; Code 1940, T. 47, §255.)Section 35-7-7 Section 35-7-7Action to recover costs and expenses.
If one joint owner or tenant in common of a partition fence, after 10 days' notice from other joint owners or tenants in common of such partition fence to assist or join with them in the erection of a partition fence, shall fail or refuse to assist in the erection, repair or maintaining, and fail or refuse to pay his pro rata or aliquot part of the costs and expenses of erecting, repairing or maintaining such fence, he shall be liable to the other joint owners or tenants in common of such fence for his pro rata or aliquot part of the costs and expenses of erecting, repairing or maintaining such fence, to be recovered in any court having jurisdiction of such action. In all such trials, however, the propriety, necessity, as well as the amount for erecting, repairing and maintaining shall be questions for the determination of the court or jury trying the case; the object and purpose of the law being that each joint owner or tenant in common shall bear his aliquot or proportionate part of the costs and expenses of erecting, repairing and maintaining partition fences; but one tenant in common shall not have the right, capriciously or unnecessarily to erect, repair or expend money in maintaining such fences and thereby require other tenants in common or joint owners of such partition fences to expend money uselessly or unnecessarily, nor to contribute thereto when the fence is erected exclusively for the benefit of the owner so erecting it. The remedy given by this section shall not be exclusive of other remedies provided in this Code for similar cases.(Code 1923, §7981; Code 1940, T. 47, §256.)