Section 35-7-7

Action 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.)