Fox v. Beebe

Waite, C. J. The statute undoubtedly contemplated a summary proceeding, in determining questions respecting the sufficiency of fences, and the mode of compelling the necessary repairs. It prescribes what, in certain cases, shall be sufficient fences. A rail fence, four and a half feet high, a stone-wall, four feet high, well and substantially erected, or any other fence, which, in the judgment of the fence-viewers, shall be equal to such rail fence, shall be deemed a lawful fence. When the fence-viewers are called upon to examine a fence, if it be a rail-fence, or a stone-wall, they have but to [277] measure the height, and see whether it is well and substantially erected. If made of any other material, they are only to see whether it be equal to a lawful rail-fence. There is to be no formal hearing or trial before them, as before auditors, or committees in chancery. In the language of the statute, they are to view the fence and determine whether, in their judgment, the fence is such as the law requires. In this respect, their duties are much like those of inspectors of provisions, and lumber, who are to decide upon the qualities, and quantity, of the articles to be inspected, not by the testimony of witnesses, but by a direct examination. Nor was it necessary for the fence-viewers, in their notice to the defendant, that the fence was insufficient, to specify the particulars, wherein it was defective. They were not to prescribe the manner in which the repairs were to be made. The plaintiff had a right to make them as he pleased, either by enlarging the ditch, or erecting a new fence of rails, stones, or any other materials. Ordinarily, the defects could readily be seen upon inspection, or admeasurement, and were there any doubts upon the subject, the defendant might have enquired of the fence-viewers. Their judgment, in this respect, does not stand upon the same ground as that of a judicial tribunal, which would not be binding upon a party, who had no opportunity of being heard, but as before observed, is more like that of an inspector. The court, therefore, did not err in admitting, in evidence, the written notice of the insufficiency of the fence. The defendant claimed that the statute did not require a ditch to be four feet wide, and four feet deep, to render it a lawful fence. This, as a general position, is undoubtedly true. Such a fence, in some cases, might be more than the law requires, and in others, less. Had the evidence in the case called for such a charge, we should have said it ought to be given. But the only [278] evidence, upon that subject, was given by one of the fence-viewers, and he spoke only in reference to the fence in question, and stated what, in the j'udgment of the fence-viewers, would be necessary to render a ditch there, a legal fence. Upon that subject, the statute made them the sole judges. The only remaining enquiry relates to the manner in which the repairs were made by the plaintiff. As before remarked, the defendant had a right to repair the fence in any manner he pleased, provided he made it a lawful one, and upon his neglect, or refusal, the plaintiff might repair it in any reasonable manner, and so far forth as the work, done by him, was necessary to make the fence a lawful one, it was competent for the fence-viewers to allow the expense. He had no right to expend money extravagantly, in the érection of an expensive and unnecessary fence, and if he did so, it would have been the duty of the fence-viewers to allow him nothing more than the expense of doing what was reasonable and necessary, in making the repairs. But in this case, it is not claimed that the repairs were made in an unreasonable manner, provided they could have been made otherwise than by enlarging the ditch, and we do not think there is any law necessarily requiring them to be made in that manner. We do not advise a new trial. In this opinion, the other judges, Stores and Hinman, concurred. A new trial not to be granted.