Day v. Dolan

Hammond, J. In the absence of evidence to the contrary, it sufficiently appears from the certificate of the fence viewers that the plaintiffs in the first case had made an application to them under Pub. Sts. c. 36, § 5; that due notice of the time and place appointed for the hearing thereon was given ; that there was a hearing as appointed, in which both parties were represented, the plaintiffs by counsel and the defendant in person ; that the division line was in dispute; that under Pub. Sts. c. 36, § 14, the fence viewers proceeded by the aid of a surveyor to run the line, and, in accordance with the survey then and there made under their direction, designated a line which is described in their certificate ; that they assigned to the parties their respective shares of the fence to be erected and maintained, which shares are particu [536] lai’ly described in the certificate; that they directed the parties to erect their respective shares of the fence within fifteen days of October 26, 1889, the date of the assignment; and that they taxed the fees and costs of the view and directed that each party should pay one half thereof. It further appears by the certificate of the city clerk that the certificate of the fence viewers was duly recorded in the office of the city clerk, October 27, 1889. Dolan did not comply with the order to build his part of the fence; the plaintiffs built it, and, in the absence of evidence to the contrary, it sufficiently appears from the second certificate of the fence viewers that the plaintiffs made application to them to have the part of the fence thus erected by the plaintiffs adjudged sufficient, and the value thereof ascertained by a certificate under the hand of the fence viewers; that due notice of the time and place appointed for the hearing thereon was given; and at an adjournment of said meeting, of which due proclamation was made and at which both parties were represented, the fence viewers adjudged this part of the fence to be sufficient, and determined the value thereof to be forty-two dollars. It further appears that thereafter wards, and before bringing this action, the plaintiffs duly demanded the same of the defendant. Upon looking into the matters put in, we see no objection to them in form. It is no objection to the validity of the notices that they were given to the parties by one of the fence viewers, and the fact that he describes himself as deputy sheriff does not make him any the less a fence viewer. Although no record of their appointment as fence viewers was put in, yet they were acting as such, and although the defendant was personally present at the first hearing, was represented at the second hearing, and was duly notified of all the proceedings, he never seems to have challenged their authority thus to act; and under these circumstances the jury were justified in finding that they were fence viewers de facto at least. The proceedings were authorized by Pub. Sts. c. 36, §§ 5 and 14, and it was not necessary to act under § 3. Without herein specifically noting in detail the defendant’s needlessly numerous requests for rulings based upon that part [537] of the defence which depends upon the alleged partiality of the fence viewers, the relation between them and the counsel for the plaintiffs, and the relation of the surveyor,to the plaintiffs, it is sufficient to say that the instructions of the court as to these grounds of defence were sufficiently full and without error. The evidence as to the number of engineers living in the city of Holyoke was properly rejected as too remote. We see no error in the other rulings upon the admission or rejection of evidence. The certificates of the fence viewers were admissible as the acts of defacto officers. As to the second case, we see no ground of objection to the charge of the court. In each case the entry must be Exceptions overruled.