Eames v. Patterson , 8 Me. 81 ( 1831 )

Weston J.

delivered the opinion of the Court, at the ensuing June term, in Washington.

Several objections are taken by the counsel for the defendant, to the right of the plaintiff to recover in this action. The plaintiff claims to maintain it, upon the third section of the act for regulating-fences, and general and common fields. That section provides, that when any dispute shall arise about the respective occupants’ right in partition fences, and his or their obligation to maintain the same, application shall be made to two or more fence viewers, who shall assign to each party his share in writing. And in case any of the parties shall refuse or neglect to erect, keep up and maintain the part to such party assigned, the same may be done by the aggrieved party, in the manner before provided in the act, and for which he shall be entitled to double the value, to be ascertained and recovered in the like manner.

It becomes important therefore to examine in what manner, it was before provided in the act, that it should be done, ascertained, and recovered. This is to be determined by a recurrence to the second section. It is there enacted, that in ease either party shall neglect or refuse to repair or rebuild the fence, which of right he ought to maintain, the aggrieved party may forthwith apply to two or more fence viewers to survey the same, and upon their determination that the fence is insufficient, they shall signify the same in writing to the occupant of the land, and direct him to repair or rebuild the same within six days. If not done, the aggrieved party may do it, and the same being adjudged sufficient by two or more fence viewers, and the value thereof by them ascertained, he may recover of the delinquent party double such value, together with the fees of the fence viewers, and if not paid within one calender mouth after demand, penal interest, by a special action on the case.

The third section then adopting the inode pointed out in the second, and referring to that, the preliminary measures therein prescribed must first be pursued in order to entitle the plaintiff to recover, viz. that the part assigned to the delinquent party should be adjudged by the fence viewers insufficient or defective, and that such party should have written notice from them of this fact, and a written requisition to repair or rebuild the same within six days. There were no such proceedings in the case before us, on the part of the fence viewers. It has been contended that these provisions aro inapplicable to the case provided for in the third section, which contemplated a new erection altogether, whereas the second section refers to a fence once built but out of repair. To this it may be replied, first, that there had been before a partition fence between the parties, part of which had been suffered to go to decay, and another part not exactly upon the line finally settled between the parties. And this would seem to present the case referred to in the second section. And, secondly, that without adopting in the third section, in this particular, the provisions of the second, there is no time limited fixing the delinquency of the one party, or vesting in the other the right to build or rebuild, and recover therefor penal damages. The main object of the third section is, to divide the fence made or to be made, and to assign to each, party his share. This being done, the statute imposes generally upon each party the duty of maintaining the part of the fence thus assigned to him.

The statute having created the duty, if not performed within a reasonable time, the common law would afford a remedy to the aggrieved party for any injury he might sustain by reason of such neglect. But the statute also gives him the power of hastening the other party, by taking the steps prescribed in the second section, and if such party does not do his duty, within the short period of six days, after notice from the fence viewers, the aggrieved party may do it for him, and hold him to pay double the expense. He has thus distinct notice of what is required of him, and of the time within which he is to. perform it, at his peril. As these provisions are equitable, and as the third section expressly adopts the mode and manner provided in the second, we entertain no doubt that the preliminary steps required by the latter, should have been pursued, in order to charge the defendant. This not having been done, the exceptions are sustained, and there must be a new trial at the bar of this court.