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09-28-2015 Council Packet
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09-28-2015 Council Packet
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8 <br />57 (noting that the parties owned adjoining property with a “boundary line fence,” and <br />applying the partition fence law); McClay, 42 Minn. at 364, 44 N.W. at 255 (noting that <br />“both parties ha[d]the use and benefit of such division fence, which thus served as a <br />partition fence between their lands”). More importantly, regardless of how the fence in <br />each case came to be deemed a partition fence, each case involves a party who sought <br />relief under the partition fence statute, a distinguishing point from the instant case. <br />Second, there is no independent right of repair in the partition fence statute. To <br />the extent that unilateral repair is contemplated, the statute only allows such repair when <br />fence viewers deem it necessary and have followed the specific statutory procedures for <br />notifying the parties and allowing the repair of the fence by the party that is required to <br />do so. See Rice, 517 N.W.2d at 608 (reversing a district court’s order that one party must <br />pay repair costs because that party was not given proper notice of the fence viewers’ visit <br />under the statute); 36A C.J.S. Fences §26 (2003) (“Before a duty to build, maintain, or <br />repair a partition fence can arise under such a statute, there must be a compliance with the <br />conditions imposed thereby.”). Appellant argues that he attempted to contact fence <br />viewers for the city of Orono, but was rebuffed because the city “didn’t want anything to <br />do with it” and did not “want[] to participate.” Apparently because of this lack of <br />response, appellant took it upon himself to repair the fence. But nothing in the partition <br />fence statute allows such unilateral action. <br />Appellant’s self-help remedy is disfavored in part because there are other legal <br />options through which appellant can address concerns about his neighbors’fence. <br />Further, appellant could have sought to force the city of Orono to perform what appears
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