Dysart v. Leeds

2 Pa. 488, 1846 Pa. LEXIS 49

• Court: Supreme Court of Pennsylvania
• Decided: June 1, 1846
• Status: Published

Opinion

Per Curiam.

— An occupant is not bound to join in a division-fence. He may set his fence, if it please him, not on the line of division but within it; and if his neighbour extend his fence across the line to join it, it is a trespass.

But if the one party set his fence on the very line, the other may not only join a panel of his fence to it, but insert the rails into it so as to extend a few inches beyond it; for when the charge assessed by the fence-viewers is answered, it becomes common property, and the use of it beyond the strict bounds of the license falls within the bounds of the maxim de minimis. Nor can the mutual privileges_ of the parties be taken away by the Statute of Limitations, or non user for twenty or more years. An occupant has a right to place his fence exactly on his boundary, in anticipation of,its becoming a division-fence; and consequently as much on his neighbour’s land as on his own. His occupancy of so much of it as happens to be necessary, like the possession of a tenant in common, is not adverse, but for the benefit of both ; and, as it is not an ouster, it can neither give nor take away a right. As the statute itself does not run, no presumption from non-user in analogy to it can have any effect; for conterminous owners are no more bound to clear and fence their lands within a particular period, to preserve their interest in a division-fence, than they are bound to build within a particular time to preserve their interest in a partition wall. Such, in substance, is the exposition of the act of 1700, by the court below, and it is a sound one.

Judgment affirmed.