Guyer v. Stratton

29 Conn. 421

• Court: Supreme Court of Connecticut
• Decided: February 15, 1861
• Status: Published

Opinion

Sanford, J.

A number of questions are presented by' this motion. .

First, it is claimed that the superior court erred in receiving parol evidence of the division of the fence in question. The statute requires each of two adjoining proprietors to make and maintain one half of the divisional fence, (Rev. Stat., tit. 15, sec. 2,) and it provides a way in which an existing fence may be divided where adjoining proprietors can not agree, or where either party refuses to make such division. Id., §§ 4, 8. It points out also the manner in which a compulsory division shall be perfected, and indicates by strong implication the way in which it must be proved. But these statutory provisions in their terms are applicable to compulsory proceedings only. No statute requires that amicable partitions made and carried into execution by agreement of the parties interested shall be evidenced by written instruments or entered upon the public records, and the very silence of the legislature in regard to such divisions, seems significant of its will to require formalities and securities in one case which it deemed unnecessary and inexpedient in the other. It is worthy of notice also, that although this subject of fences, of so great interest to our people, has engaged the attention of our legislators ever since the first settlement of the country, no statute has in terms made it necessary that a division, agreed to and acted upon by the parties themselves, should be either written or recorded, while by a statute made in October, 1713, and after-wards retained in every revision of the statutes until that of 1821, it was provided that “ if any person who ought to maintain any divisional fence ” shall neglect or refuse to repair the fence “ set out to him ” by the selectmen, “ or divide according to the agreement of the parties concerned therein, appearing by writing under their hands, or other sufficient evidence to show the same” the party aggrieved might call out the fence viewers, procure the repairs to be made, and subject the party who ought to have made them to the payment of double the value of such repairs and costs ; (Stat. ed. 1808, p. 312, §§ 39, 41;) thus recognizing the sufficiency of “ other evidence ” of a division by the parties, besides a writing under their hands.

The statute of frauds seems to have no application. An agreement between two parties charged by law with a common burden, as to the particular portion of it which each of them shall bear, is not a contract or agreement for the sale of lands, tenements or hereditaments, or any interest in or concerning them. And if it was, yet, having been executed on both sides, the statute can not be set up to invalidate it. An agreement between two joint owners of goods of the value of seventy dollars and more, to divide them equally, and an actual division pursuant to such agreement, could in no way be affected by the second section of that statute. And we think an actual division of fence between adjoining proprietors can not be affected by the first.

In the next place, the defendant contends that no legal notice of the insufficiency of the fence had been given him. His first objection is that the notice given was signed by two only, of the three fence viewers in office. This objection is unfounded. The rule is that an authority conferred by law for public purposes may be executed by a majority of the individuals on whom it is conferred, if all of them have been duly notified to act. Church, J., in Middletown v. Berlin, 18 . In the case of Edgerton v. Moore, 28 Conn., 600, and in Fox v. Beebe, 24 Conn., 271, when considering the manner in which the duties of fence viewers are to be executed, we said that they are not judicial officers; but it is manifest that their authority is conferred, as their duties are imposed upon them, for public purposes; that they belong to that class of public agents who may act by a majority of their number, if all have been duly notified. In this case the notice itself contained no evidence of the existence of another fence viewer besides those who signed it, but it being conceded that there was another, the plaintiff introduced evidence to show that all three of them being present at the examination of the fence, and at the formation of, and concurring in, the judgment regarding it, all agreed to give the notice, and to meet for the purpose of perfecting it at a time and place designated ; so that all of them had notice to attend and act, but one of them did not attend, and therefore his signature to the notice did not appear. This evidence was properly received to show due notice to all the fence viewers, and, if true, satisfied the rule above alluded to.

In the argument of the cause the counsel endeavored to deduce an inference of the legislative intent to make necessary the attendance of every member of the board, and their entire concurrence in every act, from the consideration that in the 3d, 6th, 7th, 8th and 9th sections of the statute a specific number of individuals, less than the whole, are explicitly empowered to perform the duties specified in those sections, while in the fifth no such express provision is contained. We suppose the difference between the sections referred to in this particular is purely accidental, the supposed necessity of notice to every member of the board, and the desire to avoid the expense and inconvenience of giving it, being present in the mind of the legislators in the one case and not in the other.

The defendant claims, in the second place, that the notice was insufficient and inadmissible because it did not specify the particular fence intended by it. It is a sufficient answer to this objection to say, ftiat although it was conceded that the parties owned other adjoining land with a dividing fence thereon, it was not conceded, and does not appear, but that the whole of that fence belonged to the plaintiff, or that there was any other than the fence in controversy to which the notice could by possibility apply; and this court never advises a new trial on account of the admission of evidence, unless it is shown affirmatively that such admission was illegal. And besides, the notice upon its face is applicable to all the fence between all the adjoining lands of the plaintiff and the defendant, and required the defendant to put all his “ portion thereof” in repair. And if, as this court held in Fox v. Beebe, (supra,) it is not necessary in the notice to specify the particulars wherein the fence is defective, it can not be necessary to specify the particular part of the defendant’s “ portion ” of the fence in which the deficiency is found. The party may easily ascertain where it is by measurement, by personal examination, or by inquiry of the fence viewers who give the notice.

And again, the uncontradicted evidence introduced by the plaintiff, and received without objection, shows conclusively that this notice conveyed to the defendant’s mind all the information in regard to the particular fence intended which could have been conveyed by an instrument framed with all the precision, accuracy and fullness required in a plea in abatement. And this court never advises a new trial for the improper reception of evidence, where, as in this case, it is shown affirmatively that no injustice has been effected by such evidence. Reasonable certainty is all that ought to be required in a document of this character, emanating from a board like this.

Another objection taken to the notice is, that it does not state whether the fifteen days mentioned in it were to begin to run from the date of the notice, or from the time of its ser. vice on the defendant. It was probably the intention of the legislature to give to the party fifteen days in which to make the repairs found necessary, befoi’e the other party would be authorized to make them at his expense, and if so, the time should commence rather from the service than from the date of the notice. But we need not decide this question, because, in the case before us, it is conceded that the notice was served, and actually came to the defendant’s hands, more than fifteen days before the plaintiff began to repair the fence. This objection therefore was properly disregarded by the superior court.

It is said, in the next place, that the notice was not duly served ; that what is called personal service was indispensable. But the statute says nothing about service of any kind. Its language is, “ the fence viewers shall without delay give, notice,” &c. But how they shall give it, except that it shall be in writing, the statute does not provide. The notice is not a-writ, or any kind of judicial pi’ocess, and no more requires an executive officer to make service of it, than does notice of the dishonor of a bill of exchange or promissory note. A written notice delivered by the fence viewers themselves, or by their agent, whether he is an executive officer or not, is all the notice which the law requires. And unless such a notice left at the dwelling house of the party to whom it is addressed, is duly given to the party himself, the operation of the statute may be defeated at the will of every defaulter. We have no doubt that a duly authenticated notice left at the dwelling house, is given as the law requires.

This notice too, actually came to the hands of the defendant more than fifteen days before the plaintiff began his work upon the fence. It is of no importance that the notice came to the defendant’s hands when he was out of the state. As it was not a civil process or in the nature of civil process, it operated as well beyond the limits of the state as within them.

The fence viewers’ certificate was sufficiently specific. It stated the exact length of the fence repaired and the value of the repairs per rod, the amount of the viewers’ fees, and the whole amount which the defendant was liable to pay for such repairs, and upon these elements it only required a single and simple arithmetical calculation, familiar to every one, to demonstrate what was, according to the estimate of the fence viewers, the single, and what the double value of the repairs to which it related. It needed only to be ascertained whether twenty rods and one-third of a rod of fence, at two dollars and forty cents per rod, amounted to ninety-six dollars and sixty cents, or to only half that sum. This objection to the certificate and the demand made thereon was groundless.

The charge of the court to the jury was correct. We have no occasion to decide whether the defendant would or would not have had the right to make these repairs after the expiration of fifteen days from the notice, and against the plaintiff’s will, had he in good faith begun and prosecuted the work with reasonable diligence to its completion. The exigencies of the case do not require such decision.

It is clear, as the judge charged the jury, that blasting rocks and digging stone are not in themselves repairing a fence, and nothing else is claimed to have been done by the defendant prior to the'plaintiff’s commencement of the work on the 15th of October, and even that was brought to a close on the 13th of October, two days before the plaintiff began.

We agree with the superior court, also, in the opinion that after the plaintiff had in good faith begun to make the repairs in question, he had a right to proceed with the work to its completion, without any interference from the defendant. The language of the statute on this point is explicit and unambiguous. It is, “if he or they do not within fifteen days put the same in sufficient repair, then the party aggrieved may do it.” Sec. 5. And it is not to be supposed that the legislature intended to authorize the aggrieved party, after having incurred the necessary expenses of preparation, merely to begin such a work, or to prosecute it only so far as the interest, convenience or caprice of the defaulting party might allow. Such a construction of the law would be mischievous, if not intolerable.

The stones drawn by the defendant while the plaintiff was at work upon the fence, were no part of the fence which the plaintiff was authorized to repair.' And as the defendant neither requested nor gave the plaintiff permission, he was not at liberty, to use them, and would have rendered himself liable ■to o, suit by 'iffing it.

In regard .>.< the manner in which the repairs were made, the charge was unexceptionable, and was sanctioned by the opinion of this court in the case of Fox v. Beebe, before cited.

Upon the whole we think the motion for a new trial ought to be denied.

In this opinion the other judges concurred.

New trial not advised.