Gallup v. Mulvah

24 N.H. 204

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Eastman, J.

By the Revised Statutes, chap. 136, § 1, it is provided that the owners of adjoining lands, under improvement, shall build and repair the partition fence between them in equal shares.

The third section of the same chapter provides, that if the parties do not agree upon a division, the fence viewers of the town, upon application, shall make such division; which, being recorded in the town records, shall be of the same force as a division made by the parties, and a copy of such record shall be evidence.

The fourteenth section fixes the compensation of the fence viewers, and requires that it shall be paid by the party making the application, and that he shall be entitled to demand and recover the one half thereof of the other party, in an action of assumpsit for money paid for his use ; unless, in the opinion of the fence viewers, justice requires a different division of the costs, in which case they may so order.

It is upon these sections of the statute that this action is founded. No exception is taken to the regularity of the proceedings on the part of the party making the application, nor is it contended that the money has not been paid ; but the question arises whether sufficient facts appéar upon the case to warrant the court in ordering judgment for the plaintiff.

This proceeding is entirely statutory. The money paid, and for the recovery of which the action of assumpsit is- given, is for a consideration created by statute upon certain acts done. To recover it, these acts must be in conformity with the statute. It must appear that the division has been made between the adjoining owners upon the representation of one or both the parties ; that one of them has refused to pay the part awarded for him to settle, and that the division has been made upon the true line between them.

Fence viewers, as such, have no power to fix the line between adjoining owners. They cannot legally determine the extent and boundaries of the farms of the owners, and settle their titles and rights. Their powers extend to the division of the fence merely; and before anything can be recovered for their services, it should appear, at least prima facie, that the fence divided is upon the true line. It is true that a party cannot deprive the fence viewers of jurisdiction, by asserting that there is a dispute in regard to the line. Such a construction would prevent the action of the .fence viewers in very many if not most cases where they might be called out, as the party who might anticipate an adverse decision would be very likely to raise a dispute as to the line. Still, one who seeks to recover for money paid for the services of fence viewers, must show that he called them to divide the fence on the true line between himself and the adjoining owner. He cannot recover for a division of fence which is upon his own land, neither for the division of that which is upon his neighbor’s land. If so, fence viewers could settle not only disputes in regard to fences, but all controversies in regard to lines.

' To sustain an action, a party would not, in the first instance, be required to go into the title of his land. Occupation by both parties up to the line divided, and such evidence as would make out a prima facie case for a plaintiff in trespass, would ordinarily be sufficient. The defendant can, then, if he would avoid the payment, show that the division is not upon the true line between the owners; and if he succeeds in that, he must prevail in his defence, because the statute gives no remedy for money expended in a division which is not upon the line. The. proceedings of the fence viewers in dividing a fence which is not upon the line between the owners, must all be void; and although they may have a remedy against the party calling them out for services rendered at his request and by his direction, yet he can have no claim upon an adjoining owner for a division which is not made upon the line.

By an examination of the facts reported in this case, it will be seen that sufficient evidence does not appear on which to render judgment. Had the facts been submitted to the jury, and had they found, under the instructions of the court upon the law, that the line of the old fence was the true line between the parties, it would have answered ; but the most the case now finds is, that the fence viewers made a division on the line of the old fence. Before judgment can be rendered for the plaintiff it must appear, prima facie, either from the evidence reported or the verdict of the jury, that the fence divided was upon the true line. The verdict must therefore be set aside, and a

New trial granted.