Longley v. Hilton , 34 Me. 332 ( 1851 )

The opinion of a majority of the Court, Tenney and Howard, J. J., (Shepley, C. J. dissenting,) was drawn up by

Tenney, J.

The only question involved in the exceptions is whether the assignment made by the fence viewers, and introduced as evidence at the trial was sufficient to prove a legal division of the partition fence between the parties.

Fence viewers derive all their power from the statute. Any adjudication in a matter, not within their jurisdiction, or any order for the performance of acts by the parties not embraced in the provisions of the statute is void.

By statute, c. 29, $ 5, where the owners or occupants of adjoining lands disagree respecting their rights in partition fences, and their obligations to maintain the same, after proceedings therein prescribed, the fence viewers “may in writing under their hands assign to each party his share thereof, and limit the time within which, each party shall build or repair his part of the fence not exceeding six days,” as provided in a previous section of the same chapter. And such assignment “ being recorded in the town clerk’s office shall be binding upon the parties, and all, who may afterwards occupy the lands; and they shall be obliged always thereafter, to maintain their part of said fence.” From the language used in these provisions, it is obvious that the “ share,” which the fence viewers should assign to each party has reference to the dividing line between the respective owners and occupants.

In the division of the line and the order for the erection or repair of the fence thereon, the provision, in the section referred to, contains the whole power of the fence viewers.

After assignment of the several parts of the line, they have no authority given them by which they can impose upon one party the burden of making or repairing fence upon the line assigned to the other, nor can they excuse him in any respect from the full performance of his duty in making the fence upon the part of the line falling to him. The statute has pointed out what each is bound to do after the assignment of the several portions of the line; and the fence viewers in this respect have only the further power to limit the time for the completion of the fence. Any direction to the owners or occupants beyond that to build or repair the fence within the time specified by law, incorporated into the assignment, would be entirely foreign to their duty as officers, and the parties would not be bound thereby.

If the assignment contains every thing contemplated by the statute, expressed so clearly that the parties cannot mistake the part of the line, upon which each is to build or repair, and maintain the fence, and the time is fixed when the fence is to be built or repaired, is either, or are both the adjoining occupants or owners relieved from the performance of the duty required by the statute, .by reason of a further requirement in the assignment wholly unauthorized ? If in addition to the assignment to each party, of a certain well defined part of the line, and a direction within what time the fence shall be built thereon, he is directed to build or repair the fence with certain specific materials or in a particular mode, it is not believed, that for such cause, he would be discharged of his obligations to do that, which the statute demands. If the fence should be required in the assignment, signed by the fence viewers, to be composed of stone, or brick or boards, would the owner or occupant of the land incur no risk, if he should for that cause, wholly omit to build or repair it ? He is bound to know the requirements of the statute and the extent of his duties under it. When the assignment indicates to him clearly all that the statute demands, that he should do, after an apportionment of the line, other requirements of the fence viewers therein, distinct from those, which are binding on him, will not be a protection for the omission of his legal duties, and his neglect to perform them will be at his peril.

In the case before us, the fence viewers assigned to each party the portion of the fence, which they were to build and keep in repair. They also fixed the time within which the fence should be built or repaired. The same length of line was assigned to one and to the other. In all this there is no ground to question the validity of the assignment. There was an attempt to compensate the plaintiff for fence made of stone by him, on a part of the line assigned to the defendant in a manner, not authorized, and the attempt imposed no obligations upon the defendant, and conferred no benefit upon the plaintiff. This direction of the fence viewers was simply void. The defendant was not freed from the performance of the duty required of him, both by the statute and the assignment, to construct the fence upon his part of the line; nor was the plaintiff relieved from the like obligation. The assignment was sufficient to prove a legal division of the partition fence between the parties. Exceptions overruled.