Miles v. Althoff

NIERENGARTEN, Judge,

concurring specially.

I concur with the majority opinion, but not on the insufficiency of the notice to appellant that the fence viewers were going to examine the fence pursuant to provisions of 344.04. I don’t think that the informality of that notice (orally in a tavern) caused any harm to appellant. That notice serves only the purpose of giving appellant a chance to view the fence with the fence viewers and the opportunity to persuade them that the fence is not in need of repair. The more important notice is the second notice required under 344.04 requiring the viewers to notify a delinquent owner in writing that a fence is insufficient and *659directing him to build or repair the fence within a reasonable time. An examination of the record indicates that that notice, in the form of a letter dated October 4, 1982, from the township supervisors, merely requested that Althoff “put in a line fence * * * “maintain your portion of the fence line * * * which fence must be in and work completed in thirty days or by November 3.” This notice does not substantially meet the requirements of 344.04 which requires the fence viewers to notify the owner, at least in substance, that (1) the existing fence is insufficient or that a new fence is necessary; (2) direct him to build, repair or rebuild the fence; and (3) if he fails to comply with such directions, the person who complains about the fence may build, repair or rebuild such fence at his own expense subject to reimbursement. The majority decision, of course, results in Al-thoff receiving a new fence at no cost and his neighbor complainant having to absorb that cost because of the failure of the township board to substantially comply with statutory requirements.