Goodwin v. Hodgkins , 107 Me. 170 ( 1910 )

King, J.

Action on the case to recover double the amount certified by fence viewers as the value of a portion of a partition fence built by the plaintiff, and of their fees. At the conclusion of the evidence the presiding Justice pro forma directed a verdict for the plaintiff for the amount claimed in the writ. The case is before this court on exceptions to that ruling.

Several grounds of objection are urged against the validity of the doings of the fence viewers under which the plaintiff claims that the liability of the defendant was established, but we find it necessary to consider only one, which we think is fatal to the plaintiff’s case.

On reference to the facts proved at the trial, especially the notice to defendant dated July 23, 1909, it is clearly apparent that the proceedings were had under the provisions of sec. 3, chap. 26, II. S., which reads:

"If any party neglects or refuses to repair or rebuild any such fence, which he is legally required to maintain, the aggrieved party may complain to two or more fence viewers of the town where the land is situated, who, after due notice to such delinquent, shall proceed to survey it, and if they determine that it is insufficient, they shall signify it in writing to the delinquent occupant, and direct him to repair or rebuild it within such time as they judge reasonable, not exceeding thirty days. If the fence is not repaired or rebuilt accordingly, the complainant may make or repair it.”

It appears that the fence viewers met on the 24th of July, 1909, according to their notice, and adjourned to the 26th of July. At neither of these meetings was the defendant present. On the latter date the fence viewers sent to him by registered mail a written notice that they found his part of the partition fence insufficient, "and that such fence must be made a legal fence, within four days from the twenty-sixth (26th.) day of July A. D.-1909.”

It appears from the testimony of the defendant and his wife, which was uncontradicted, that he did not receive, or have knowledge of, this notice until long after the time limited therein had expired. His wife received the registered letter in his absence from home, and did not forward it to him, and he did not receive it till his return home the last days of September.

Was the mailing of this notice, which was not in fact received by the defendant until long after the time fixed in it for building the fence had passed, a sufficient compliance with the statute requirement as to notice? We think not. The necessity for actual notice to a delinquent that the fence viewers have directed him to rebuild his portion of a partition fence, within a specified time, is so inherent in the very purpose and spirit of this statute that its requirement would be implied if it was not expressed, for, without such requirement, that which was intended to do justice, becomes the very means of doing injustice. But we think this statute does express such a requirement in the words, "They shall signify it in writing to the delinquent occupant.” To "signify” is "to make known.” Such, we think, is the import of the word as used in the statute.

Section 5 of the same chapter, under which section the fence viewers are authorized to divide a partition fence, provides that they "may in writing under their hands assign to each his share thereof, and limit the time in which each shall build or repair his part of the fence, not exceeding thirty days.” This court has held, under this section, that "it must appear that they delivered to such party their assignment in writing at the time it was made, so that he may know the part he is required to build, and have the whole time limited by them in which to build it.” Briggs v. Haynes, 68 Maine, page 536. The necessity of notice of the adjudication of the fence viewers that the delinquent must repair within a given time is as imperative in the one case as in the other. If under the provisions of sec. 5, no recovery can be had unless actual notice of the adjudication to repair was given to the defendant at the time it was made, a fortiori there can be no recovery under sec. 3, where the statute expressly requires that the fence viewers, "shall signify it in writing to the delinquent” and when it only appears that it was sent by mail within the time, but not in fact received until after the time had expired.

The reasons given for the decision in Chase v. Surry, 88 Maine, 468, are equally applicable, we think, to the question here presented. It was there held, under the statute which requires one who claims to have sustained injuries by reason of a defect in a highway to "notify” the municipal officers of the defendant town "by letter or otherwise” setting forth his claim for damages, etc., within fourteen days after the alleged injuries were received, that it was not a compliance with the terms of the statute to mail the required notice to the municipal officers within the fourteen days, the same not having been actually received by them within that time.

If the adjudication of fence viewers is sent to the delinquent by mail, within such time that in the ordinary course of the mail it would reach him in time for him to comply with their directions, the fact that he did so receive it, nothing being shown to the contrary, might be presumed therefrom. But that is not this case. It here appears that he did not receive it, and no evasion or wrongful act on his part is shown to prevent the receipt of it.

The plaintiff’s action is under a penal statute, and it was incumbent upon him to prove that all the requirements of that statute had been complied with. In this we think he failed in one important particular, that he did not prove that the defendant had sufficient and timely notice of the adjudication of the fence viewers that he must build the fence within the time they had fixed.

Exceptions sustained.