Shores v. Bell , 58 Vt. 319 ( 1885 )

The opinion of the court was delivered by

Rovos:, Ch. J.

This was an action of trespass guare clausum fregit, but was really to settle the divisional line between the parties.

The referee has found the line substantially as claimed by the defendant. The only act shown to have been committed by the defendant which could be claimed as wrongful, was the rebuilding of a fence in the same place, as nearly as could be ascertained, where a fence was first built in 1860, and had ever since been maintained, and to which the parties in interest had ever since occupied. The fence was built under an agreement that it should be placed on the true line when it should be ascertained. Neither party would become a trespasser by occupying to that fence under that arrangement. Clark v. Dustin, 52 Vt. 568. It was virtually a license to occupy to that fence until the true line should be ascertained.

Neither was the defendant made a trespasser by rebuilding the fence. He had the right to occupy, and that would carry with it the right to do what was necessary to protect his occupation. And that right was not affected by what was said by the plaintiff when he was building the fence. What was done by Bell in running and ascertaining the dividing line was not conclusive. The agreement was wholly in parol and is not shown to have been acquiesced in for fifteen years. Smith v. Bullock, 16 Vt. 592.

The judgment for defendant is affirmed.