Vincent v. Ackerman

Brooke, J. (after stating the facts). The defendant at the trial claimed that the proceedings of the fence viewers as above set forth were incompetent as evidence, first, because the determination did not fix the time within which the fence should be built; second, because it had not been properly recorded; and, third, because — 617 — the statute under which the proceeding was had is unconstitutional. The statute in question is as follows: ‘ ‘ When any controversy shall arise about the rights of the respective occupants, in partition fences, or their obligation to maintain the same, either party may apply to two or more fence viewers of the township where the lands lie, who, after due notice to each party, may in writing assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the fence in the manner before provided; which assignment, being recorded in the township clerk’s office, shall be binding upon the parties, and upon all the succeeding occupants of the lands; and they shall be obliged always thereafter to maintain their respective portions of said fence.” 1 Comp. Laws, § 3419. The determination of the fence viewers, it will be noticed, was silent as to the time within which each of the interested parties should erect or repair his share of the fence. We do not think this is a fatal objection to the determination. It will be noticed that the statute upon this point is not mandatory, and the failure of the fence viewers to specify the time within which parties should erect their respective shares of the fence will not render nugatory their action in dividing the fence and assigning to each of the parties his share thereof. Upon making their findings and giving due notice thereof to the parties, it thereupon became the duty of each to proceed within a reasonable time to comply with the determination of the fence viewers. As to the second objection raised by the defendant, we are of opinion that inasmuch as he had actual notice of the contents of the determination of the fence viewers, it having been served upon him personally several months before the cattle were distrained, he is not in a position to raise the question. In any event, the original paper was properly filed for record with the township clerk, and the index was made in the record provided for chattel mortgages, bills of sale, and other miscellaneous papers. Under the circumstances, this was a sufficient record — 618 — under the statute. See Farrington v. Bristol, 35 Mich. 28. The constitutionality of the act under which the proceeding was taken has been passed upon contrary to defendant’s contention in Gilson v. Munson, 114 Mich. 671. Reversed, and a new trial ordered. Grant, Montgomery, Hooker, and Moore, JJ.5 concurred.