Harris v. Sturdivant , 29 Me. 366 ( 1849 )

Howard, J.

The plaintiff brought this action under c. 29, of the R. S. to recover double the value of a fence, which he claims to have built, in pursuance of an assignment by fence viewers, and in consequence of the neglect of the defendant to comply with their assignment and adjudications. Various objections to the maintenance of the action were taken at the trial, in the District Court, and were made the subject of exceptions.

But the principal question presented to us is, whether the defendant was entitled to previous notice of the adjudication of sufficiency of the fence, by the fence viewers, and of their adjudication, or estimation of its value.

Such notice was not alleged, or proved, and isjuot^required by the express terms of the statute. Notice, however, has been held requisite to parties, and those interested in suits and proceedings under penal and remedial statutes, by reasonable and necessary implication, where no express provision was made therefor, upon the general rule and principle of justice, that, where the rights of persons are to be adjudicated, some notice should be given to enable the parties to appear, and assert and protect their rights. We cannot infer in this case, that the adjudications were to be ex parte, because the statute is silent upon the subject, without invading this salutary rule and principle.

In Scott v. Dickinson, 14 Pick. 276, the appraisal by the fence viewers, without notice to the delinquent party, was held to be void. The proceedings upon which that case was founded, were under the act of Massachusetts of February 21, 1786, § 2 and 3, of which the act of this State, 1821, c. 44, 2 and 3, is a transcript.

In Abbot v. Wood, 22 Maine, 541, this Court have recognized the principle settled in Scott v. Dickinson. Harlow v. Pike, 3 Greenl. 438; Commonwealth v. Chase, 2 Mass. 170; Same v. Coombs, 2 Mass. 489; Same v. Peters, 3 Mass. 229; Same v. Cambridge, 4 Mass. 627; Chase v. Hathaway, 14 Mass. 222; Bouton v. Neilson, 3 Johns. 468; Rathburn v. Miller, 6 Johns. 281; Kinderhook v. Claw, 15 Johns. 538; The King v. Venables, 2 Ld. Raym. 1407; The Queen v. Dyer, 1 Salk. 181.

We hold, therefore, upon principle and authority, that if the adjudication and appraisal, by the fence viewers, were made without notice to the defendant, this action cannot be maintained. Exceptions sustained.

New trial granted.