Ellis v. Ellis , 39 Me. 526 ( 1855 )

Bice, J.

—This action is founded on § 5, c. 29, E. S. This section provides that when the occupants or owners of adjacent lands cannot agree respecting their rights in partition fences, and their obligations to maintain the same, on application of either party to two or more fence viewers of the town, where the lands lie, said fence viewers after reasonable notice to each party, 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 is provided in the third section of this chapter. Such assignment and all other assignments of proprietors of partition fences, provided for in this chapter, being recorded in the town clerk’s office, shall be binding upon the parties, and all who may after-wards occupy the lands.

Where there is no prescriptive agreement, or statute assignment, no tenant is bound to fence against an adjoining close; but in such case, there being no fence, each owner is bound, at his peril, to keep his cattle on his own close. Little v. Lothrop, 5 Maine, 356.

When a statute gives a new right, and prescribes the remedy, that remedy, to be available, must be strictly pursued.

The right to compel an adjoining proprietor or occupant to build and maintain a portion of the partition fence, or to pay for such portion, if built by a co-terminous proprietor, is derived from the statute. Before such right can be enforced, all the requirements of the statute must be complied with. To make the assignments of proprietors of partition fences, provided for in c. 29, binding, they must be recorded in the town clerk’s office. This was not done by either of the parties in this case, and for that reason the action cannot be maintained. Plaintiff nonsuit.