The opinion
Koehler, J.,
dissenting. Recognizing that “good fences make good neighbors” the legislature of this state has historically required the owners of adjoining rural lands to build, keep up and maintain in good repair in equal shares all partition fences between them.
This appeal is the culmination of numerous court actions between the parties including an action to settle a boundary line dispute. This court’s decision perpetuates the problem, and, I believe, misinterprets the provisions of R.C. Chapter 971 thereby denying Fon-taine the availability of mandamus to secure his remedy.
The majority has found that the trial court dismissed Fontaine’s action in mandamus for the wrong reasons. However, this court compounds the problems by affirming the dismissal of Fontaine’s mandamus action upon an unsupportable premise.
R.C. 971.04 establishes a duty upon the board of township trustees in partition fence proceedings and requires that the board “ * * *
shall
view the fence or premises where such fence is to be built,
and
assign, in writing, to each person his equal share thereof, to be constructed or kept in repair by him.” (Emphasis added.) In this cause, the Hanover Township Board of Trustees failed or refused to comply with the legislative mandate and endeavored to avoid the duty enjoined upon it, claiming that, due to topography, terrain and location of the partition, it is “impossible” to make an order of assignment. Such avoidance under the circumstances herein is not supported by statutory provisions or case law.
Had the board of trustees performed its proper function and made an order of assignment, such an assignment could readily be appealed by the aggrieved party to the court of common pleas. In such an instance, mandamus would not be available.
The majority concludes that the refusal to make an order of assignment as required by R.C. 971.04 is exclusively appealable and compares the board of township trustees’ failure to act as required by statute to the denial of a building permit. Certainly a refusal to act is not tantamount to the denial of the substantive rights of the persons adversely affected by such denial.
Mandamus is clearly proper when a board of trustees refuses to
exercise
its discretion. Upon such exercise of its discretion, mandamus would not lie and an aggrieved party would have available the adequate remedy of an appeal.
Thus, I believe that mandamus was proper in this case to force the board of trustees to make a decision as to assignment of costs to build a partition fence as it was required by statute to do. Accordingly, I must dissent.