Harlow v. Stinson , 60 Me. 347 ( 1872 )

Appleton, C. J.

‘ Prescription to fence,’ says Parsons, C. J., in Rust v. Low, 6 Mass. 97, ‘ is allowed at common law, as resulting from an original grant or agreement, the evidence of which is lost by lapse of time. . . . The country has now been settled long enough to allow of the time necessary to prove a prescription ; and ancient assessments by fence-viewers, made under the late provincial laws, and also ancient agreements made by the parties, may have once existed, and be now lost by lapse of time.

‘ Every person, then, may distrain cattle doing damage on his close, or maintain trespass against the owner of the cattle, unless the owner can protect himself by the provisions of the statute, or by a written agreement, to which the parties to the suit are parties or privies, or by prescription.’ Such was the law of Massachusetts at the time of the separation of this State, as determined in that case, and subsequently sanctioned by repeated decisions.

In Heath v. Ricker, 2 Maine, 72, it was decided that parol proof of usage in the maintenance and repair of separate portions of a partition fence, was admissible evidence to show a prescription. In Little v. Lathrop, 5 Maine, 357, the court fully affirmed the law as laid down by Mr. Chief Justice Parsons, in Rust v. Low, and held that when there was no prescription, agreement, or statute assignment, no tenant was bound to fence against an adjoining close; but, in such case, there being no fence, each owner was bound at his peril, to keep his cattle on his own close. In Knox v. Tucker, 48 Maine, 375, Mr. Justice Kent uses the following language: ‘ It is now the well-settled law in this State, and in Massachusetts, that the neglect, which is made a bar to recovery in an action of this kind (trespass quare clausuni), can arise only from a division of the fence, either by fence viewers, acting under the statute, or by a valid and binding agreement between the parties owning adjoining lots, or by prescription.

The counsel for the defendant, in his very able and ingenious argument, has called our attention to certain decisions of this court, as indicating a different view of the law on this subject. On examining, however,- the cases to which we have been referred, it will be found that the question of prescription was not considered or discussed by the court. In Sturtevant v. Merrill, 33 Maine, 63, there was no evidence tending to show a prescription, nor did any question relating to this subject arise. That the views of Mr. Justice Tenney were in accord with the previous decisions of this court, is abundantly manifest by his subsequent concurrence in the opinion of Mr. Justice Kent, in Knox v. Tucker, to which reference has been had. In Webber v. Closson, 35 Maine, 26, it appeared that the parties had jointly maintained a partition fence. There was no particular portion,, therefore, that either the plaintiff or the defendant, was bound to keep in repair. It was for the plaintiff, therefore, to keep his own sheep on his own land. In Bradbury v. Guilford, 53 Maine, 99, the question of prescription is not discussed, nor is there in the opinion anything adverse to the previous decisions of this court.

In Wright v. Wright, 21 Conn. 330, it was held that a party was ‘ not precluded by anything in the nature of a statute of limitation.’ But in Connecticut, a party is obliged to fence against cattle at his own risk, while in this State, the owner must see to it that his cattle do not trespass upon the land of others. In Wright v. Wright, the court was divided. So in Glidden v. Fowle, 31 N. H. 147, it was held that there was no law of prescription to fence, but that the statute law was the only law of the State governing partition fences.

The statute of Massachusetts on the subject of fences is almost identical with that of this State. In Thayer v. Arnold, 4 Met. 589, after a full examination of the subject, the court say the common law as to prescription was not altered by the statutes relating to fences; and, as has been seen, such has been held to be the law in this State. Exceptions overruled.

Kent, Walton, Dickerson, Barrows, and Danforth, JJ., concurred.