Ellsworth, J.
This is an action to recover the amount awarded by certain fence-viewers, under the eighth section of “An Act concerning Fences and Common Fields.” Among other things unimportant to the merits of the action, the declaration sets forth that the plaintiff and defendant are owners of enclosed lands, separated by a division fence or stone-wall, which it is their duty, mutually, to build and maintain; that the plaintiff and those under whom he holds, having built the entire length of wall, it has become the duty of the defendant to unite with the plaintiff in dividing it, and to pay him one-half of its value.
The defendant objects to having any division whatever made, by the fence-viewers, and insists that he is not bound to abide by any such division, if made; nor to make or maintain, or pay for any part of this wall, let the fence-viewers do what they may. The reasons for this are set forth by the defendant in his second plea.
The declaration further states, that the fence-viewers have been called out by the plaintiff, and have proceeded to make and to have recorded, a division of the wall between the [340] plaintiff and defendant, and have awarded to the plaintiff the sum of forty dollars, for that portion of the wall set to the defendant.
It is the opinion of a majority of the court, that the plaintiff had a good right to demand a mutual division of this ancient wall, and that the fence-viewers, having, by application to them, become vested with jurisdiction to proceed according to the provisions of the statute, had, as incident to such proceedings, power to award the payment of such sum as to them seemed just and reasonable; and it is the question of their power and right to divide and apportion anew, a fence which had been maintained by the former proprietors, in a particular manner, for a series of years, which gives to this case its chief and general importance.
The defendant, in his second plea, would seem to rely upon a prescription or ancient practice, founded on a supposed agreement, entered into by one Martin Wright, which forever excuses the defendant from building or maintaining any part of the wall in dispute. Before proceeding to the main question, we remark, that the defendant’s plea is obviously defective in form. The form and manner of pleading a prescription in bar, is familiar to every member of the profession. In this case, no intelligible prescription is pleaded, by description or otherwise. Nor is it averred to be obligatory upon the plaintiff. Nothing more is stated than certain evidence conducing to prove some kind of a prescription, accompanied with a general averment, at the close of the plea, of the present duty of the plaintiff; but this is not an averment of the necessary facts to sustain the plea. Besides, it only states that Marlin Wright and the defendant in fact divided a certain fence, many years since; and that they, so long as the said Martin was in life, and the plaintiff since, as to his lot, have continued to maintain that particular fence according to said ancient arrangement; but no perpetual obligation, as founded in such arrangement, and to run with the land to the present occupant, is averred, or can be inferred from what is averred. And further, whatever usage or agreement is set up in the plea, or may be inferred from what is set up, relates to the two farms of the said Martin Wright and the defendant, as they existed, and were enclosed, in their ancient and unbroken state; whereas divis [341] ions and subdivisions have since taken place; and strangers, purchasers or execution creditors, ignorant of the existence of any ancient arrangement, have become or may become owners of these farms; every parcel of which now sustains, or may sustain relations to every other parcel, most essentially qualifying any duties to fence, of an ancient date.
But to come to the main question in hand. What is the effect of a division of fence, made by persons under whom the parties claim title? Does such a division run with the land through all time? Is an agreement, unrecorded, if not unwritten, and perhaps unknown, of the nature of a covenant which runs with the land? This is an interesting question of great practical importance to the people of this state. It can be answered only by a careful study of the various provisions of our statutes on the subject of fences, which have been enacted from time to time, until there has been built up a complete system of our own, somewhat peculiar perhaps, but well adapted to general use, and quite satisfactory to the people of the state.
The first section of “An Act concerning Fences and Common Fields,” provides “that the proprietors of lands shall make and maintain sufficient fences to secure their particular fields and enclosures.” The second section provides, that “when adjoining proprietors enclose their land in severalty, each shall make and maintain one-half of the division fence." This duty of adjoining proprietors, the law attaches, by its own force, to all private enclosures, as soon as they become such. It is a legal incident or appurtenance attached to such lands per se, and runs with them perpetually, furnishing an intelligent rule of duty to every person who purchases, or acquires by execution, enclosed lands. Prima facie there is just such an incident, and no other; the purchaser relies upon it as a valuable part of bis purchase; and it is the measure of his rights and duty in respect to others who own adjoining lands. Such a rule adapts itself to land, both while it is in the form in which it was when first enclosed, or as it becomes by subsequent divisions and subdivisions. A contrary rule would produce great confusion and embarrassment, and effectually defeat the statutory provisions which give a simple and uniform rule, and would establish in their stead, rules secret and impracticable. Even between the [342] original parties, a parol contract to divide fences for all time, void, as within the statute of frauds and perjuries, and doubly so, if it is held to bind. third persons indefinitely, and through all mutations of the title. How, and when, and where, shall a purchaser or creditor about to have the land set off, find out the truth and extent of such a contract? Suppose, on enquiry, he is informed that there is something of the kind generally believed, or that there is a practice of long standing, as the plea says there is, in the present case, having, as is said, its origin in some usage of ancient date, at a time when the lands and fences were of very little value; what now shall be done in order to be safe? Who is to decide how the fact is? And at whose risk is the question to be decided? We think such an ancient usage, if admitted at all, should be construed with reference to the subject matter, and held to be a temporary arrangement, to govern the then owners, under the existing circumstances of the property. If the arrangement be full and explicit in its language, we think it should rather be confined to the parties to it than extended to others, in the nature of an obligation running with the land, binding every part and parcel of it, into whose soever hands it may have passed. Suppose that two farms in the neighbourhood of one of our cities, have been enclosed, at an early period of their occupancy, by an unimportant fence, each owner being accustomed to build and maintain a certain portion of it, for a series of years; is this simple fact to establish a prescription that this identical division is to continue without end or alteration? And suppose these farms are now sold, and divided into different building lots, which are purchased by various individuals, who know nothing of the original division of fence, or how long it was to continue; is the ancient practice to controul? We do not say, that parties cannot bind themselves, and others, who assent, by contract, to build and maintain fences for all time, though such a transaction would be quite extraordinary and improbable; but we do say, that verbal agreements for dividing fences do not, per se, like covenants, run with the land in its transfers, against bona fide purchasers and attaching creditors; and that dividing and selling enclosed lands, prima facie, subjects them to a new division of fence among the new owners. We admit, this rule of law may produce disappoint[343] ment and injustice in individual cases, as where the parties have made a division and erected fences accordingly, or have regulated their conduct according to an existing division; and one of them now sells out to a stranger, who insists on a new division. In such case, it is asked, does this act of one of the parties break up the division of fence agreed to by them, or does it not rather require the purchaser to take the place of his grantor? We answer, a contract for the present division of a mutual fence, must, in the absence of explicit language to the contrary, be construed with reference to the subject matter, that is, with reference to the parties who made it, and to their enjoyment under their stipulated division. We know not how third persons can be made parties to the agreement, without their knowledge and concurrence, unless indeed, we hold these agreements to run perpetually with the land, like covenants. The provisions of the statute are explicit and important; and we are confident less injustice will be done, by fully adhering to those provisions, and holding that land passes with the legal incidents already mentioned, than by bolding the contrary doctrine claimed by the defendant. Indeed, we believe this 8th section of the act passed in 1848, was designed to meet just such a case as the one before us. “Whenever by sale, &c. &c., a particular enclosure has been, or shall be divided between two or more persons, &c., or whenever adjoining proprietors cannot agree, &c., said fence-viewers shall view said fence, and make such divisions and apportionments,” &c. A new division of fence is contemplated as necessary, whenever land is divided or sold. So, the language of the 4th section is very significant; it declares that whenever a division of fence is made and duly certified by the select-men, and recorded in the records of the town, it shall be valid and binding on the parties. So, in the 19th and 21st sections, the law contemplates the necessity of altering the division fences of common fields from time to time, as new proprietors come in, and provision is made therefor.
It is further claimed, by the defendant’s counsel, that the plaintiff does not bring his case within the provisions of the 8th section of the act, because it does not appear there is no record of any division of such fence. The declaration avers [344] there has never been a divided fence between the parties, which implies there is no record of any division; and besides, the defendant does not, in his plea, pretend there has been any record, or any division whatever, except the ancient division made between the two entire tracts of land, by the ancient proprietors; and that is a division which we hold is not obligatory upon the plaintiff.
Much has been said about a prescriptive right to compel the defendant to maintain the entire fence, and we have been referred to Rust v. Low & al. 6 Mass. R. 90. for the law of prescription contended for by the defendant’s counsel.
We have no occasion to look abroad to learn how to interpret and apply our own statutes to a case situated as this is. Nor do we suppose that the common law is the same in Connecticut as in Massachusetts and England. Here, a person is obliged to fence against cattle, at his own risk; and if his land is not fenced, he can recover no damages or impound for a trespass by cattle, as was settled in Studwell v. Ritch, 14 Conn. R. 296; whereas in Massachusetts and England, the owner must restrain his cattle, at his own risk, or he will be liable, if they trespass upon the lands of others.
Again, as to the effect of time, we do not perceive how it can be shown that the plaintiffs is bound by prescription, to maintain this entire fence, because his grantor originally built it, and the plaintiff and defendant have enjoyed it more than fifteen years. The defendant has gained nothing by an adverse enjoyment, nor has the plaintiff lost any thing. It was the duty of both to maintain the fence; and there is nothing adverse about it; hence the plaintiff is not precluded by any thing in the nature of a statute of limitation. The enclosing of one’s land by a fence, more than fifteen years, creates no prescriptive duty forever thereafter to maintain it. Why should it? Enclosing one’s land is no more than one is obliged to do, in order to enjoy it fully and securely, and no more than he and his neighbour were bound to do, in common, until a voluntary or forcible division is established. Suppose a person in the environs of one of our cities encloses his entire ground by a handsome and expensive fence, and the owner of the adjoining lot needing only a common post and rail fence, if any at all, is not called upon to contribute to the expensive fence, and the whole is built without his aid; [345] has the one who built the whole fence, by this generous act of his, fixed a servitude upon himself and upon his land, every part of it, which will continue forever?
Even as evidence of an agreement to continue to do as he has done for so many years, (and it can be urged in no other point of view,) he certainly can resist the proof, and shew why and how he did it, i. e. for his own accommodation, and not because of a mutual agreement with his neighbour, obliging him to do it. A prescriptive title is always founded in a presumed grant or agreement; and in this it differs from a title by adverse possession, which is strictly no title at all, but an inability in the plaintiff to assert his right; though in Connecticut, and recently in England, by statute, a title is held to be acquired, under the statute of limitations.
Now, in the present case, it is certain, the plaintiff has never entered into an agreement to build and maintain this entire fence, but quite the contrary. The fact is, that old Mr. Martin Wright at first built the fence himself, and the plaintiff has only owned it and enjoyed it, together with the defendant, for some twenty years; repairing it as it needed to be repaired. Viewed, therefore, in any light, we do not perceive how the defendant can resist the claim of the plaintiff for a new division of the fence, and for the recovery of the damages awarded by the fence-viewers.
There remains one further objection to the plaintiff’s right to recover, namely, the allowance of interest by the fence-viewers, in their award. The language of the statute, which gives fence-viewers jurisdiction to make partition and award damages, as they deem just and reasonable, is very broad and comprehensive: “And said apportionments and award shall not be invalid, in consequence of any inaccuracy, if the location of said division, the respective parties, and the sums awarded, can be understood.” A majority of the court think the fence-viewers have not exceeded their jurisdiction, and that for mere error of judgment in fixing the sum of money to be paid by one party to the other, if such there is, we cannot set aside their proceedings as oppressive and void. The same may be said as to the allowance of the forty dollars. How much the plaintiff had done towards maintaining the wall since 1826, and for what, exactly, this sum was awarded, we cannot know. The subject matter was within the [346] jurisdiction of the fence-viewers: they divided the fence, and the aforesaid sum, as in their view, just and reasonable, and we cannot overhaul their judgment.
In this opinion Church, Ch. J., and Stores and Hinman, Js., concurred.
Waite, J.
The statute requires each of two adjoining proprietors of lands, occupied in severalty, to make and maintain one-half of the divisional fence, and prescribes the mode in which either, at pleasure, may compel a division of the fence, in case they cannot agree upon the same.
And when such division has been legally made, it is not in the power of either party alone, without the consent of the other, directly or indirectly to vacate or annul that division. And it makes no difference in what manner that division was made, whether by the select-men or fence-viewers, in the manner prescribed by statute, or by the voluntary agreement of the parties.
Nor is it a matter of any consequence, whether the division is proved, by an instrument executed with all legal formality, and duly recorded, or by an usage, of so long continuance, as to furnish sufficient evidence of a legal division. When made and proved, in either of these modes, it is, in the language of the statute, “valid and binding upon the parties,” and all who claim under them.
To allow a division made by the select-men or fence-viewers, in the manner authorised by statute, to be set aside, at the pleasure of one of the parties, would be to render such a proceeding but an idle farce, a result never contemplated by the legislature. And to permit a party to break up a division, once legally made, by his voluntary agreement, without the consent of the other party, would be a violation of the clearest principles of law and justice. Such a law would be literally one “impairing the obligation of contracts,” and such as no state legislature can constitutionally establish.
It has been claimed, that nothing short of record evidence will be sufficient to prove a legal division. It is undoubtedly the policy of our law to make, as far as possible, all titles to real estate, appear of record. But this, in every case, cannot be done. The record title of a farm may be in one person, [347] and yet another, by fifteen years’ adverse possession, may have acquired a title to a portion of the farm; another, by long user, may have gained a right of way over another part; and still another, by a like user, may have acquired a right to flow another portion. And although the records shew nothing of the titles thus acquired, yet they are just as valid and effectual, as if proved by the most solemn instruments, and the record title must yield to their superior efficacy. The purchaser, therefore, to ascertain the true title to the property, which he is about to purchase, must not only look to the records, but the manner in which the property has been used and occupied.
The same principle, in my judgment, applies to the surrounding fences. It is the duty of the purchaser, to inquire what portions of them belong to his vendor to maintain and keep in repair, and what to the adjoining proprietors. And, upon the purchase, be succeeds to all the rights and privileges of his grantor, and nothing more; and these, like every other title, connected with real estate, may be shewn, either by the records, or by an usage for such length of time, as in like cases, will furnish sufficient evidence of title.
In my judgment, it makes no difference, whether the whole tract belonging to the vendor, is sold to one individual, or separate portions to different persons. In either case, the rights of the adjoining proprietors will remain unaffected, by the sale, and no injustice will thus be done to the purchasers. The one who buys adjacent to the fence, which his grantor was bound wholly to maintain, will take that circumstance into consideration, in determining the price which he can afford to pay, and act accordingly. While another, who purchases land adjoining a fence belonging to another person to keep in repair, can afford to pay the more, on that account.
But to require old divisions to be broken up, and new ones made, every time a person sells a portion of his land, will impose intolerable burdens and hardships upon the adjoining proprietors; and no one can tell when he has discharged the duties, imposed upon him bylaw, in relation to the fences surrounding his land. He may, at great trouble and expense, procure a division to be made, by the select-men of the town, and then make his half in, the most thorough and [348] substantial manner. To-morrow, his neighbour sells a portion of his land, and the purchaser calls for a new division, and the purchase of one-half of his share of the division fence. If this can be allowed, then a party who has once made a division, and made one-half the fence according to that division, may be subjected to the trouble and expense of a new division, and the purchase of another portion of the fence, which may be such as he does not want, and would not have, if he could possibly avoid it. And thus the process of making new divisions, new appraisals, and new purchases, must be repeated, upon every sale of a portion of the adjoining land.
Indeed, we need not look beyond the present case to witness the evils resulting from the doctrine contended for by the plaintiff. What are the facts set forth in the declaration and pleadings, and admitted by the parties? Martin Wright owned a tract of land adjoining the defendant’s, the divisional fence between which had been divided, and the division acted upon, for a period of more than thirty years; Wright, and those under whom he held, maintaining the Southerly and Easterly half; and by fair inference, the defendant the remaining half.
In 1826, the plaintiff purchases a portion of Wright’s land, adjoining his fence, and from that time down to the year 1849, a period of more than twenty years, continues to maintain that fence, as his own. And then, after a division of fence had been acquiesced in, by all parties interested, for more than half a century, and he and those under whom he holds, had maintained the fence in question, during all that time, as their own; and the defendant, for aught that appears, had, during the same time, supported a like portion; the plaintiff calls out the fence-viewers, causes his fence to be divided, and one-half to be appraised, with interest for more than fourteen years, and then sues the defendant to recover the appraised value and the interest.
Upon what principle, either of law or justice, the action can be sustained, and especially for the interest upon the value of the fence, previous to the appraisal, I am unable to understand. It has been said, that the remedy is given, by the statutes passed in the years 1843 and 1846.
But the rights of the parties became vested, at the time of [349] the plaintiff’s purchase in 1826, after a practical division had been made and acquiesced in, for a period of more than thirty-years, and the first statute was not passed until 1843, after a like acquiescence, on the part of the plaintiff, for a period of more than fifteen years. And there is nothing in the language of either statute requiring a retrospective operation.
It is true, the latter statute authorizes a division, where there is no record of any division. But this must be understood as applying to cases where the division cannot be proved, by record evidence, or that which is equivalent. In this respect, as already stated, a right relating to the adjoining fence, stands upon the same ground, as a right of way or a privilege in a water-course, and may be proved in a similar manner. It surely could never have been the intention of the legislature to authorize the breaking up of all ancient divisions of fences in the state, such as can be established by immemorial usage, merely for want of record evidence. And I presume it will not be claimed, by any one, that a division of fence, which has never been recorded, and which cannot be supported, by an usage equivalent to record evidence, will be binding upon one who buys without knowledge of any such division. But where such division is established, in either way, it will have the same effect as any other right in the land supported by similar evidence, and the purchaser must take the land cum onere.
But, in my judgment, those statutes were never intended to apply to any external fence which had been divided, but only to such as had never been divided, and such internal lines as had been created by the sale of lands, in separate parcels, to different individuals. Under such circumstances, each purchaser is entitled to a division of such fences around his land, as had never previously been divided, and nothing more.
But were the construction otherwise and the statute construed as extending to all dividing lines around each parcel, without regard to any former division, still I do not see upon what ground the plaintiff can recover, in his present suit.
The revised statutes, which were in operation when the fence-viewers acted, required them to “make such divisions and apportionments as might be necessary to do justice to all parties, and award in favour of such parties and against such [350] parties, as they should deem just, such sums as in their judgment would be reasonable.” Rev. Stat. 373.
To comply with these requirements, it was their duty, not merely to divide the plaintiff’s fence, and determine the value of one-half, but if, in their judgment, the defendant ought to assume the support of one-half of the same, to determine who should support a corresponding portion of the defendant’s fence, and to award the payment, by the defendant, of only such sum as would equal the excess in value, if any, of the plaintiff’s fence awarded to him, over that which had been transferred from him to some other party.
In such manner only could substantial justice be done to the defendant. But instead of that, the fence-viewers have made no provision in their award, by which he may be remunerated for the money which they have required him to pay, or by which he may be exonerated from the support of any portion of his fence. In what manner is he to be reimbursed for the burdens thus cast upon him? Is he to call upon the other purchasers of Wright's land, and compel them to purchase portions of his fence, and keep them in repair? This, in my judgment, would not only be imposing unreasonable hardships upon the defendant, but would do palpable injustice to the several grantees of Wright.
If the plaintiff, by this operation, can compel the defendant to pay him forty dollars for one-half of his fence, then he, in effect, gets his land so much less than the price, which he stipulated to pay. And if the other grantees are liable to pay the defendant a like sum, then they are compelled to pay so much more than they had agreed to pay; an effect, which, I am confident, was never contemplated by Wright, nor any of his grantees, at the time of his conveyances to them; nor by our legislature, in prescribing the mode in which fences might be divided. Nor is it in conformity with the provisions of the statute requiring fence-viewers to make such divisions and apportionments as would be “necessary to do justice to all parties.”
For these reasons, I would advise the superior court to reverse the judgment of the county court.
Judgment affirmed.