Jones v. Perry , 50 N.H. 134 ( 1870 )

Bellows, O. J.

The question reserved, and the only one argued, is, whether one adjoining land-owner can lay in common a part of a tract of land once under improvement, and where the fence had been legally divided, and thus relieve himself of the burthen of maintaining the fence. In this case the fence on the line of the part which defendant proposed to lay in common, in the division by the fence-viewers, had all been assigned to the defendant, and the fence had once been built throughout the entire line.

If by laying in common, after such division, all the land of one proprietor on the line so assigned to him, he could thereby throw upon the other proprietor the burthen of maintaining the whole fence, not only against the land laid in common, but against the land which remained enclosed and improved, it would manifestly be so-unjust as to bear strongly against a construction which should allow a part to be so laid in common. On this point the Rev. Stat., ch. 136, sec. 2, provides that a division of fence made by the parties in writing, and recorded, shall be forever binding upon the parties and all succeeding owners and occupants of the land; and sec. 3 provides that a division made by the fence-viewers shall be of the same force as a division made by the parties. These terms are explicit, but at the same time it is unquestionable that the parties may by agreement change or abrogate such division ; and it must be equally clear, that if one party lays in common all the land adjoining the fence assigned to him to maintain, he must be regarded as having assented to the abrogation of that division. He has elected to abandon it, and having voluntarily destroyed its mutuality, he could not be permitted to enforce it against the other owner.

This view is strongly countenanced by decisions in other States to the effect that if the land of one adjoining owner is sold in different parcels, after a division of the fences, so that new conterminous proprietors are introduced, each one extending over a part only of the line so divided, a new adjustment and division becomes necessary, holding that the statute refers to the state of things existing when the fence was divided. Adams v. Alstyne, 25 N. Y. 236; Wright v. Wright, 21 Conn. 329.

It is obviously the policy of our statutes to require adjoining land-owners to contribute to the maintenance of division fences only when their lands are under improvement; and also to relieve them from the bur-then when they shall cease to improve, or lay their lands in common ; or, in other words, that they shall be compelled to contribute to the maintenance of fences only when they themselves have occasion for them. By sec. 11, of the same ch. 136, Rev. Stat., if such owner shall cease to improve his land, or shall lay the same in common, he-shall not remove his part of the fence, but shall be under no obligation-to repair or rebuild it so long as his land shall lay in common. It is.' urged, by the plaintiff that the term his land means his whole land, and not a part; but we are unable so to construe it.* It is very clearly not the policy of this statute to compel a party to maintain a fence for which, in consequence of laying his land, or part of it, in common, in-good faith, he has not any longer the slightest occasion.

For ought we can see it might as well be contended that the whole -of an adjoining lot was under improvement because one corner of it-was so improved, as to hold that, after having been improved and enclosed, none of it could be laid in common because one corner was still improved. If an adjoining owner has occasion for a fence to protect a portion of his land under improvement, he can be-compelled, by application to the fence-viewers, to contribute to maintain the fence so far as he has occasion for it; but if he chooses to let the greater part of the lot lie common, he cannot be compelled to contribute to the fence on that part; and so we think it must be when he chooses to throw in common a part of his land that had once been enclosed and improved.

Nor does the fact that the land in question has once been under improvement and the fence divided throughout the entire line, prevent the exercise of the right to lay a part in common and be relieved of the burthen of fencing it. It is not questioned that he may lay the whole in common and be relieved of the entire burthen; and we think that both the terms of the statute, and its general policy, are broad enough to embrace a case like this.

Another question might be raised, on the case reported, and that is, whether the land was actually laid in common before the plaintiff had built this fence for which he claims to recover. It is stated that defendant notified plaintiff of his intention to do so when the fence-viewers were on the first time ,* but. upon the authority of Field v. Proprietors, 1 Cush. 11, such notice alone would not seem to be sufficient, but the actual laying it in common would seem to be necessary. The cross fence from E to H is said to have been built before the fence-viewers were on the second time, which was after the plaintiff had built the fence; but it does not appear whether this fence from E to H was built before plaintiff had built or repaired the fence in question, or whether the land had actually been laid in common or not.

Under these circumstances, it would not be useful to consider this point further.

Case discharged.