Foster v. Bennett

Redefeld, Ch. J. This is an action upon the statute of 1853 to recover of the defendants, as adjoining proprietors of land, the expense of building their proportion of the division fence, together with the damages sustained by their neglect to build the same. There is a motion to dismiss the action, on the ground that the justice had no jurisdiction of it, the title of land being concerned. It appears from the declaration and the nature of the case, that the plaintiff’s action must proceed upon the ground that the parties are adjoining proprietors, by such a tenure, that it is incumbent upon the defendants to build the proportion of fence for which the plaintiff claims pay, and that this fence is built upon, or as near as practicable to, the dividing line between their lands. This would seem directly and necessarily to involve an inquiry into the title of the parties, and the extent and nature of such title upon the general issue. The title of land is then cpncerned [67] in the action, and it, by consequence, is excepted from the jurisdiction of justices of the peace. This question is expressly decided in Shaw v. Gilfillan, 22 Vt. 565, and upon grounds entirely satisfactory, as it seems to us. The action was correctly dismissed. Judgment affirmed.