Franklin Others v. Wells , 6 R.I. 422 ( 1860 )

In the case before us, the court ruled, that the certificate of the fence-viewer contained all the facts necessary to sustain the plaintiffs' action, except evidence of the demand of payment of the defendant of the damages ascertained.

The application made to the fence-viewer, as stated in his certificate, and upon which all these proceedings were had by him, was made by the plaintiffs, requesting the fence-viewer to view and divide the fence between the plaintiffs and the defendant. This was made under the 8th sect. of ch. 91, of the Revised Statutes, "Of fences." This section provides, that "when any controversy shall arise about the rights of the respective occupants in partition fences and their obligations to maintain the same, either party may apply to a fence-viewer of the town where the lands lie, who, after due notice to each party, may, in writing, assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the same; which assignment, being recorded in the town clerk's office, shall be binding upon the parties and all succeeding owners and occupants of the land; and they shall be obliged always thereafter to maintain their respective shares of said fence, until the right of the respective parties shall be determined differently in some proper action." Upon an application under this section, which supposes the rights and liabilities of the parties to be in dispute, the authority of the fence-viewer goes no farther than to ascertain and settle these rights and liabilities, by assigning to each party his share of the partition fence. This section contemplates no further action of the fence-viewer. It is true, he may direct the time within which the parties shall build or repair the part assigned them, but this section does not authorize him to enforce a compliance with that direction. His proceeding under this section is merely to fix the obligation of the parties and the extent of it, and here it leaves the subject.

The 5th section of this chapter provides for cases where no controversy is supposed to exist about the rights of the respective occupants of the fence, but where the duty to maintain the fence is ascertained and settled, and it provides, that "When any proprietor or possessor of land shall neglect or refuse to repair or rebuild any partition fence, or shall withdraw his fence from any division line, the aggrieved party may complain to any fence-viewer of such town; who, after due notice to such party, shall attend and view the same; and if he shall find said complaint to be true, he shall, in writing, require the delinquent party to repair or rebuild the same within such time as he shall therein appoint, not exceeding fifteen days."

To authorize any proceeding by the fence-viewer, either to compel the party to build or repair, or to mulct him in damages for neglect, there must be a complaint that he has neglected or refused to build or repair the partition fence; and upon that complaint, not upon some other, notice must be given to the party complained against that such complaint has been made, and of the time appointed by the fence-viewer to view the fence; and having given such notice, the fence-viewer must adjudge the complaint so made to be true; and if he find it to be true, he is to assign a time within which the party may still perform his duty by building.

The sixth section provides, that if this order be not complied with, and the party still neglects, the complainant may rebuild or repair, and shall do it to the satisfaction of the fence-viewer, who is to judge whether it is properly built. If satisfied upon this point, he is required to ascertain the cost of building, together with his own fees, and to give a certificate thereof to the complainant. No notice is, in terms, required to be given the delinquent party to be present, or to be heard upon the assessment of these damages against him; but upon a similar statute in Massachusetts, and one from which this was probably copied, it has been held, that the precepts of natural justice require such notice, and that such notice is necessarily implied. Scott v. Dickinson, 14 Pick. 276; Lamb v. Wicks, 11 Metc. 496. Having adjudged then, upon notice to the delinquent party, what the cost of rebuilding has been, and having given to the complainant the certificate of the amount so adjudged, the complainant is authorized, but not until these several judgments upon notice have been made, to demand of the defendant the amount adjudged, and upon refusal by him to pay, to maintain a suit therefor.

Now it does not appear from the certificate of the fence-viewer, that any complaint was made by the plaintiffs that the defendant had neglected or refused to repair the division fence; nor does it appear therefrom that any notice was given to the defendant that any such complaint was made against him, — or that the fence-viewer intended to view the fence, at any time, in order to determine if he had refused or neglected to build or repair, — nor has the fence-viewer certified that he found any complaint against the defendant to be true, much less a complaint that he had neglected and refused to build the partition fence. Neither does it appear, that before proceeding to ascertain the cost of the fence built by the plaintiffs, that he gave any notice to the defendant that he might be heard in the assessment of damages. If any one of these requisites be wanting, the plaintiffs cannot maintain their action, even though a regular demand were made upon the defendant, and on a day to which there could be no objection. With these omissions of facts necessary to the support of the plaintiffs' action, apparent from the certificate of the fence-viewer, it was an error in the court to rule that it contained all that was necessary to support it; and for this cause there must be a new trial. Whether it was competent for the defendant, by evidence, to contradict the certificate in its statement that notice was given the defendant of the application to view and divide the partition fence, it is not necessary now to consider; because, if such notice had been given, the plaintiffs could not recover. Neither is it material to determine, whether the demand made by the plaintiffs upon the defendant was, or was not, legally made; since there was nothing legally adjudicated which they could of right demand.