The parties were the owners and occupiers of adjoining lands. Grehman made -the first settlement and improvement, and when Schnare commenced to occupy his land, Grehman had a rail fence on his western line, being the dividing line between his land and the land of Schnare.
In February, 1855, Grehman alleging that he did not wish to keep up the division fence at his own expense, served a written notice on Schnare to build one-half of this fence. *286Scbnare accordingly built forty rods of post and board fence at tbe south end of -the land.
In October, 1856, Gehman sold Ms land to one Walker, except a strip sixteen feet wide next to Scbnare, and extending throughout the tract. Walker then took up the rail fence built by Grehman and removed it sixteen feet west to Ms own line. He occupied the land until the fall of. 1857, when he re-sold it to Gehman. Gehman took up a portion at the south end of the fence built by Walker, and removed it to within four or five feet of the board fence built by . Schnare. The removal of this fence by Gehman, left the fields of Schnare open, and cattle got in so that he was compelled to build forty rods more of fence, to protect his grain. In the spring of 1858, Gehman left Ms fence open at the north and south ends of the lane, so that cattle came in through the lane upon the land of Schnare, who again went to work and built eighty rods more of fence, making one hundred and sixty rods in all, and extending the whole length of the dividing line of the parties.
TMs suit was brought by Schnare, before a justice of the peace, to recover of Gehman the price and value of one-half of this fence. There was a judgment in Ms favor before the justice, and on appeal to the District Court, exception was taken by the defendant to certain instructions given to the jury, and to the refusal of the court to instruct the jury as requested by the defendant. There was a verdict and judgment for the plaintiff.
By the Code, section 895, the adjoining owners of enclosed land, are required to build and maintain one-half of all division fences, unless otherwise agreed between them. The plaintiff was authorized from the terms of the notice and the circumstances under which it was given, to infer that he was to build and maintain but one-half of the division fence.^ This was all the law required of Mm, and upon his erecting his portion, he had the right to expect that defendant would keep up the remainder.
The notice to plaintiff was not in so many words an agree*287ment to that effect; but from the fact that defendant owned at the time, the fence upon the division line, and from his remarks to the plaintiff at the time the notice was given, that he did not wish to keep up the whole of the fence at his own expense, the' plaintiff was authorized to infer as the agreement between the parties, that if he built one-half of the fence, the defendant would either build the other half himself, or would permit so much of his own fence, as was necessary for that purpose, to remain as a division fence.
The defendant however was not satisfied with such an arrangement. He seems to have resolved in his own mind that the plaintiff should build and maintain the whole of the division fence. When the plaintiff’s one-half had been built, defendant by removing his own fence and leaving a portion of his own uninclosed, compelled the plaintiff for his own security, to build the whole of the division fence. It is not necessary to enquire upon what motive he acted, but the fact is none the less apparent, that while the fence owned and erected by the defendant would have answered the purpose of a division fence, he evinced his unwillingness that plaintiff should derive any use or advantage from it: first, by procuring Walker to remove it from off the division line; secondly, by letting down the bars at the ends of the lane, and leaving his own lands exposed, and thus exposing the land of the plaintiff.
The court, we think, properly left it to the jury, to determine whether defendant received a common benefit from the fence built by the plaintiff; whether he had joined his own fence to the same, and whether it protected his land as it did that of the plaintiff; and directed them, if they found that such facts existed, to return a verdict for the plaintiff for the cost of one half of the division fence.
As the defendant without availing himself of the provisions of the statute in relation to fence viewers, gave notice to plaintiff to build one half of the division fence between their lands, and as the plaintiff in compliance with the notice built one-half of the fence, we think the District Court cor*288rectly charged the jury that if the defendant failed to erect and maintain the other half of the fence, and by such failure rendered it necessary for plaintiff to build the whole, if defendant has received the benefit of this fence in common with the plaintiff, he cannot defeat the plaintiff's action to recover one-half the cost of the fence, by objecting that it was not built by the requirements and under the directions of the fence viewers of the township.
The sale of the land by the defendant to Walker, after the notice was given by him to the plaintiff to build the one-half of the division fence, does not affect the relations of the parties, nor change the questions at issue between them. The defendant still retained a strip of land adjoining the plaintiff's land, sixteen feet wide, and it was by arrangement with Walker that the fence was removed sixteen feet further east, so as to be upon the line of the land sold to Walker.
As the questions of fact were left to the decision of the jury, and we think there was sufficient evidence to authorize the verdict, the motion for a new trial was correctly overruled.
Judgment affirmed.