Millner v. Elias

Keeler, J. As divided in the brief of the appellant, the errors assigned are considered under three groups. In the first group, error is assigned in the admission by the court of testimony as to the location of the division line between the respective properties of the parties, and in its charge as to the effect of such evidence. In the second group, in the failure of the court to charge the jury that the fence in question was a division fence. In the third group, in charging the jury that the defendant was not bound by the division of fence entered into by defendant’s predecessor in title. Regarding the plaintiff’s first claim of error, predicated on admission of testimony as to the division line between the properties of the parties, and the charge of the court with reference to this subject, we may observe that it is not contended by either party, or held by the court, that the award of the selectmen acting as fence viewers, is in any way conclusive as to the location of a boundary line. Edgerton v. Moore, 28 Conn. 600, 604. The proceeding is under General Statutes, § 5135, which provides that if any person shall fail to keep in repair his division fence, a party aggrieved thereby may call on the selectmen to view it, and they, if they find it insufficient, shall give written notice to the person bound to repair it, and that if repairs are not made within fifteen days, the party aggrieved may repair the fence, and may recover double the cost of such repairs as estimated in writing, plus the fees of the selectmen. The question here raised relates primarily to the jurisdiction of the selectmen. Their statutory power *286 and jurisdiction relates only to causing repair of a divisional fence. The defendant challenged the jurisdiction of the selectmen on the ground that the location of the divisional line between the properties involved was in dispute. Plaintiff claimed that it was well established. If the testimony offered by defendant as to the location of the fence and of the divisional line was admissible as outlined in the statement of facts, and the charge of the court with reference to such testimony correct, then the jury might properly have found that the selectmen were without jurisdiction, in that the plaintiff had not proved one of the necessary allegations of her complaint, that is, that the fence in question was a division fence. . Upon this subject the court charged as follows: “As the court has said in a similar case, ‘it was competent for the defendant to show that the fence viewers had no jurisdiction of the subject-matter, for in such case their action would be void. And evidence that tended to show that there was no known or recognized line between the parties, tended to show a want of jurisdiction in the fence viewers, for they can only view and decide upon a known line. The plaintiff, in good faith, may have supposed she was the owner of more land ’ and so forth, ‘ but if her claims were not recognized by the adjoining proprietors and there was no settled and known line between them, the fence viewers had no authority to undertake to pass upon the validity of her claims, and any action of the fence viewers in attempting to locate an uncertain line between these parties was not obligatory, nor could it be made so by the honesty and bona fid.es of the transaction on the part of the plaintiff.’” “So, as I said, you must at the outset determine whether or not this fence was a divisional fence. I might say in passing, perhaps, that the evidence on the *287 question of its not being on the line has been admitted, not for the purpose of deciding where the line is, but offered by the defendant as a part of the evidence to disprove the claim that it was a divisional fence. That is, the claim being if not on the divisional line, it would be most improbable that the parties would ever have agreed on its being a divisional fence. That is a question for you gentlemen to determine. . . . You can draw such inference from all of that evidence as you in your wisdom deem best and that is the reason the evidence has been admitted as to the location of this boundary line, not for you to determine where the boundary line is, but for you to determine whether or not this is a divisional fence.” The charge of the court in the first excerpt above quoted is adapted from the opinion of this court in Talcott v. Stillman, 28 Conn. 194, 198, and except for a few words is a quotation therefrom. The case last referred to was brought under the statute relating to a division by the selectmen of a divisional fence hitherto undivided between adjoining proprietors, and the allocation of one part to one proprietor and of another part to the other proprietor for purposes of erection, maintenance and repair. This statute now appears as General Statutes, § 5137, in which the procedure by the selectmen is similar to that provided by § 5135, on which the present action is brought. The plaintiff is attempting to show that the case last cited is not applicable to the situation disclosed in the record in the instant case, because under the facts in the authority cited, the selectmen undertook to locate a line and order the erection of a fence where none had previously existed, and it was properly held that the fence viewers had no jurisdiction to establish a disputed line, and that the defendant could introduce evidence as to its true location, and so “in the case at bar, the fence *288 had been in existence for a number of years, the true line was known and well established, and the plaintiff was seeking merely to recover for repairs to such existing fence; and it was not competent for the defendant to produce evidence concerning the location of the division line.” The fallacy of the plaintiff’s contention, especially as exhibited in the part quoted, is that it assumes, in the first place, as a fact, that the division line was known and well established, and hence not in dispute, when in fact, under the claim of the defendant, the line was not known and established, and was in dispute, and whether or not it was so in dispute was a question left to the jury, and evidently found by them in favor of the defendant. The evidence was admissible for the reasons above stated by the trial court. The fact of whether or not the fence was on the divisional line would be of prime importance in determining whether a fence as located would have been regarded as a divisional fence. The jury evidently found that there was no line recognized by both parties as divisional, and hence, under the instruction of the court, that the selectmen were without jurisdiction in the matter. The court did not err in the admission of the testimony, nor in the charge to the jury as to its application in the case. The evidence certainly conduced in a reasonable degree to establish the improbability of a fact in issue, and was logically relevant to such fact, and not excluded by any rule or principle of law. Plumb v. Curtis, 66 Conn. 154, 163, 33 Atl. 998. In her second grouping of reasons of appeal, plaintiff claims that the court erred in failing to charge the jury that the fence was a division fence. Pressing this point, plaintiff urges that the existing fence had served to divide the properties for eleven years, and that no claim was made by defendant to the selectmen to the *289 contrary, but was first made at the trial, when a trifling variation of an inch or two from the property line was claimed. The defendant was under no obligation to make any claim to the selectmen, although the court finds that he claimed to have proved that he informed them after receiving their notification that the division line was in dispute. He was not called upon to make any claim to the selectmen. The statute provides for no hearing. At the trial of the cause he made the claim, and that was the time and place to make it. Plaintiff further claims that it is not necessary that a partition fence be located precisely on the division line, but that it need only be substantially so located, in the absence of express or implied agreement to locate it elsewhere, and cites authority to that effect. This latter claim is involved in the third claim of error of plaintiff, and can better be considered in connection therewith. In the third group of reasons of appeal, the plaintiff assigns error in the holding of the court that the defendant was not bound by a former alleged division of the partition fence. The claim of error is chiefly based upon a portion of the charge given, as follows: “The parol agreement, to use the legal term, more commonly spoken of as oral or verbal, as to the division of such fence, is valid only as between those parties and does not run with the land. That is, on the sale of this property by Mr. Buzaid to Mr. Elias, Mr. Elias was not bound by that agreement, as matter of law. He could, if he chose, have affirmed it, but he had the legal right to call upon the selectmen in their capacity as fence viewers for a new division if he could not agree with Mrs. Millner. On the other hand, he could either expressly or impliedly acquiesce in that division, if he chose, so it is a question for you to determine on this feature of it as to whether or not this defendant *290 agreed either expressly or impliedly that that was his portion of the fence to repair.” The plaintiff’s counsel make the preliminary claim that the alleged parol agreement between the plaintiff and the defendant’s grantor, relative to a division of the fence, was executed on both sides, was not within the statute of frauds and was binding, citing Guyer v. Stratton, 29 Conn. 421, 429. The claim is true to this extent, that if the jury found that this oral fence division was in fact made, it was binding on the parties thereto. As to whether it was in fact made there was contradictory evidence, and the issue was properly left to the jury for its determination. In Wright v. Wright, 21 Conn. 329, 342, we held 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.” The plaintiff, admitting the force and application of this decision, seeks to limit its effect to be only to give to a new proprietor a right to ask for a new division and enforce it in the statutory manner, and until he does this, he is bound by an existing oral division. We do not so construe the statute. By its terms, it must exist as well for one proprietor as for the other; for the holder during a long period and for the recent purchaser. To give validity to this contention, even were it correct in law, it would be necessary to assume that the jury had found an actual division of the fence. This was a fact litigated at the trial and as to which the claimed proofs are contradictory, and therefore we must assume that the jury might have found the fact in favor of defendant. The alleged oral division of fence, as the court in *291 structed the jury in the portion of the charge last quoted, could have been expressly or by implication acquiesced in by the defendant. And the jury were further instructed by the court, that if such an acquiescence by defendant was proved, a verdict for the plaintiff would be justified. All of the issues really in dispute at the trial arose out of the allegations of the first paragraph of the complaint, which alleged the ownership of adjoining lots “between which was a divisional fence, which the defendant was bound to keep in repair.” As to the disposition of these issues, as we have seen, the jury were properly instructed as to the effect of evidence properly received. There is no error. In this opinion the other judges concurred.