Piper v. Piper

60 N.H. 98

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1880
• Status: Published

Opinion

Doe, C. J.

The defendant’s woodland was so used by him as to mate a partition fenee necessary. His cattle roamed through it as a part of their pasture, and the plaintiff needed a protection against them which he might not have needed if it bad been cultivated. Within the meaning of the statute of fences, the woodland was under improvement, as a cattle-yard would be. Chase v. Jefts, 58 N. H. 280. The division made by the parties in writing included this part of the line, and contained the defendant’s express acceptance of this part, and his express agreement to build and maintain a fence there. By this written division and agreement, be induced tbe plaintiff and tbe fence-viewers to act upon Ms admission that the woodland was under improvement.

The defendant's non-observance of his agreement, and of the fence-viewers’ notice to build Ms part of the fence, authorized the plaintiff to build it at the defendant’s expense. Gen. Stats., c. 128, ss. 1, 2, 6, 7, 8, 9, 19. The plaintiff had a right to build it across tbe ledge, on the line, although the expense would be greater there than a few feet further south, on the plaintiff’s land, where be did build it. Waiving Ms own right for the benefit of tbe defendant, be put the fence where it would be the least expensive and most advantageous for the defendant, and called the fence-viewers to appraise it. The defendant, being notified, attended the hearing,, and objected, but did not present the objection which he now makes to the location. If be bad presented it then, tbe plaintiff could have obviated it by discontinuing that proceeding (if its discontinuance would have been necessary), building on the lino across tbe ledge at a greater expense for the defendant, and calling-out the fence-viewers again.

Tbe trial of tbe question of value was a judicial inquiry: tbe defendant was entitled to notice, and an opportunity to be beard, and tbe appraisal was “final and conclusive upon the parties.” Gen. Stats., e. 128, ss. 14,17. And if it was tbe duty of the fence-viewers to determine tbe value without undertaking to decide the question of the defendant’s liability, tbe defendant is nevertheless precluded from denying tbe fact wbicb bis conduct caused the plaintiff to believe in and act upon. Having attended the trial, and, by making a groundless objection and witholding this one, having induced the plaintiff to proceed to judgment of appraisal, resort to this court for execution, and thus change his position, in the reasonable belief that the defendant waived the objection of location, he is estopped to say he did not waive it. When the fence was tendered to the defendant by the proceeding for appraisal, he was required by good faith to waive this objection, ox* present it when tbe plaintiff could obviate it by moving tbe fence before judgment of appraisal, as a creditor, entitled to legal tender, is required to object to other customary money when it is tendered. or waive the objection. Lyman v. Littleton, 50 N. H. 42, 45, 46. The plaintiff had as much reason to suppose the defendant would not object to the most advantageous location, as a debtor has to suppose his creditor will not object to ordinary currency worth as much as legal tender.

When the defendant pays for the fence it will be his property. The boundary line will not be changed. And we see no difficulties in the future exercise of the rights of the parties, sufficient to take the case out of the operation of tbe rule that disallows the unjust effect of belated objections.

Judgment for the plaintiff'.

Smith, J., did not sit: the others concurred.