Blood v. Spaulding

The opinion of the court was delivered by Powers, J. It has been repeatedly held in this State that adjoining land owners may by parol make agreements for the division of fences that will be binding upon them until repudiated. Scott v. Grover, 56 Vt. 499; Hitchcock v. Tower, 55 Vt. 60. The division agreed upon between the plaintiff and Wetherbee, eighteen years before the defendant bought of Wetherbee, was recognized by the defendant when he succeeded Wetherbee; and he has ever since maintained his part-of the fence in accordance with that division. This long acquiescence in that division has all the force of an agreement as between the plaintiff and the defendant. When the defendant leased his farm to Fillio it was understood between them, that Fillio was to maintain and keep in repair the same fences that the defendant had hitherto maintained. Under the lease Fillio assumed the duty as to plaintiff that his landlord was under by force of his agreement with the plaintiff respecting the division of this fence. [425] Without any contract in the lease from the defendant to Fillio respecting the maintenance of fences, we understand that the law, in the case of the ordinary letting of a farm at the halves, is that the tenant assumes the duty of making all needed current repairs. In Powley v. Walker, 5 T. R. 373, it was held that the mere relation of landlord and tenant of a farm was a sufficient consideration for the tenant’s promise to manage the farm in a husbandman-like manner. - In the case of buildings, a tenant by the year is bound to keep them wind and water-tight in the absence of any agreement to repair. Auworth v. Johnson, 5 C. & P. 238; Leach v. Thomas, 7 C. & P. 326. A farm leased by the year cannot be carried on under the rules of good husbandry unless division fences are kept in repair to prevent trespasses upon the land. By force then of the implied duty of the tenant growing out of his occupancy of the land, to keep the fence in question in repair, the fault complained of was his and not the defendant’s. Cheetham v. Hampson, 4 T. R. 318; 1 Ad. Torts, 214; Moulton v. Moore, 56 Vt. 700; Tyl. Boun.; Tay. L. T. SS. 183, 343, 344. Judgment reversed, and judgment on report for the defendant.