(concurring in part and dissenting in part).
Although I agree with the majority on Issue I — that the trial court erred in granting summary judgment to the Jensens — I believe the trial court also erred in refusing to dismiss the action against Robert and Herma Marsden because they are not the owners of the property under SDCL ch. 42-23.
SDCL 43-23-5 provides:
43-23-5. Neglect or refusal to erect and maintain half of legal fence — Enforcement by adjoining landowner— Service of notice and demand. If any owner of any land who is liable for one-half of the expense of erecting and maintaining a partition fence pursuant to § 43-23-1 neglects or refuses to so erect and maintain one-half of a legal fence on the lines separating his land from adjoining land, the owner of the adjoining land may serve upon such delinquent owner a notice in writing demanding that he shall erect or repair, as the case may be, a legal fence along one-half of such line, describing it, within thirty days from the date of the service of such notice and demand upon him.
In simple terms, the statute provides that “If any owner of any land ... neglects or refuses ... the owner of the adjoining land may serve upon such delinquent owner a notice in writing demanding that he shall erect or repair, ... one-half of such line, describing it, within thirty days from the date of the service of such notice *768and demand upon him.” (emphasis added). The statute does not permit service of the notice upon tenants of the owner as the majority’s interpretation permits. If such is not obvious enough from a plain reading of SDCL 43-23-5, it is clear from a reading of SDCL 43-23-8, which provides that the judgment entered for construction or repair of a partition fence shall be a lien upon the land of the delinquent owner for which it was constructed, superior to all other liens thereon except taxes. The majority opinion would permit a lien to be placed upon this property even though this property is owned by M & K Partnership and not by the tenants, Robert and Herma. I would dismiss Robert and Herma Marsden as parties in this matter. On remand, I would permit liability against the owner, M & K Partnership, only if they have been properly served notice and only if the partnership is liable as principal through the acts of its agent, Robert and Herma Marsden, assuming agency can be established.
I agree with the majority opinion that Jensen’s erroneous description of the portion of the property where the legal fence was to be erected was not significant if M & K Partnership understood where Jensens wanted the legal fence built.
I agree with Marsdens that the requirement within SDCL 43-23-5 to “serve ... such delinquent owner a notice in writing,” requires something more than mailing a letter. The majority’s reliance on SDCL 15-6-5(a) and (b) is misplaced. In fact, these statutes support Marsdens’ position. Both of these statutes relate to times when a person has already been made a party by service of summons upon him. Once a person is a party by service of the summons upon him, then, and only then, do these statutes permit service by mail. Even then, service by mail is permitted only upon that party’s attorney, or upon that party if he has no attorney. It is interesting to note that the last sentence of SDCL 15-6-5(a) that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in § 15-6-4. The attempt to impose legal liability for a legal fence where no liability existed before is certainly comparable to “asserting new or additional claims for relief against them.”
The majority opinion is simply rewriting SDCL 43-23-5 to its own liking. If the legislature meant the adjoining landowner could create legal liability by “mailing” a notice, why did they use the word “serve” and why did they say “from the date of service of such notice and demand upon him.” It seems to me that the legislature would have simply used the words “mail” and “from the date of mailing.”
The significance of being “served” is substantial. A landowner may not appreciate the legal significance of receiving a letter or notice in the mail. Not so if he is served with the paper. There is a real difference when the person has been served a summons and is already a party to a lawsuit. See SDCL 15-6-4; SDCL 15-6-5(a). Once served, he appreciates the legal significance of papers, whether served or mailed.
Fence line disputes are serious business. The legislature has provided a legal remedy. The statute requires at least “substantial” compliance, if not “strict” compliance. In this case, the Jensens have not even come close to “minimal” compliance.
I would not reach Issue III, which relates to Jensens’ claim for prejudgment interest. Jensens obtained summary judgment without any evidentiary hearing being held concerning the value of the labor and materials used in the construction of the legal fence. In Issue I, this summary judgment was reversed and remanded to the trial court. Despite that, the majority proposes to consider whether Jensens are entitled to prejudgment interest. This is a classic example of putting the cart before the horse.