Pollock v. Morrison

Hammond, J. At the trial before the court without a jury, the-court found as facts that “ before the petitioner began the labor for which the lien is claimed the respondent erected a fence between the lots from the Pearl Street end to the point opposite the southwesterly side of the southerly bulkhead of the building on the first lot purchased, intended to be a permanent division of the lots. That from such point to the southerly boundary of lot number 2 a fence had been erected not perma [414] nent in its character which was taken down and removed before the labor was performed as it would interfere with building operations if allowed to remain, the defendant having the intention at that time to construct a permanent fence from the end of the fence left standing to the southerly line of lot number 2 substantially as later erected and now standing.” We think the evidence sufficient to warrant the findings. The intention of the respondent was manifested by acts done upon the ground, such as constructing a part of the fence and concreting a part of the ground upon one side of the fence. It was not necessary that the whole of the fence should have been constructed. v The petition having been amended so that the description of the land covered by the lien was correct, and there being no other question in dispute, the court propei-ly refused to rule that upon all the evidence the petition could not be maintained. Pollock v. Morrison, 176 Mass. 83. Exceptions overruled.