Glidden v. Towle

Eastman, J. By section 14, chapter 136, of the Revised Statutes, it is provided that “ each fence-viewer shall be allowed one dollar per day for his services, to be paid by the party making the application, and he shall be entitled to demand and recover the one-half thereof of the other party, in an action of assumpsit for money paid for his use, unless, in the opinion of the fence-viewers, justice requires a different division of the costs, in which case they may so order.” — 162 — Upon this section, the present action is founded, the plaintiff having paid the fence-viewers for making a division of certain fences between him and the defendant. The jury, under the rulings of the court, found a verdict for the plaintiff. To these rulings, a large number of exceptions were taken, and they have been argued at length, and with ability, showing, in a marked manner, the perseverance that oftentimes attends a litigation, when the amount at issue is but trifling. By § 1, ch. 136, Rev. Stat., it is provided that the owners of adjoining lands, under improvement, shall build and repair the partition fence between them, in equal shares.” Section second provides that “ any division of such fence, made by the parties in writing, and recorded in the town records, shall be forever binding upon the parties, and all succeeding owners and occupants of the land.” And section third provides that “if the parties shall not agree upon a division, the fence-viewers of the town, upon application, shall make such division, which, being recorded in the town records, shall be of the same force as a division made by the partiesand that “ a copy of such record shall be evidence.” The thirteenth section points out the course to be taken by the fence-viewers, in notifying the parties, attending the hearing, reducing their decision to writing, and causing a copy thereof to be given to each of the parties, within a week. And the fifteenth section provides'that “every application to the fence-viewers shall be in writing,” and that “ one application may embrace as many subjects as, from the nature of the ease, may be acted upon at one meeting.” This proceeding being one founded entirely upon the statute, a plaintiff must bring himself within all its substantial provisions, before he can recover the one-half of the money paid to the fence-viewers. Adjoining owners are, by the statute, bound to build and repair the partition fences between them. They may make a division by agreement, which being reduced to writing and recorded, will bind them — 163 — and all succeding owners. Or in case they do not agree, they may apply to the fence-viewers, and have the division made by them. The statute provides for only these two ways in which to make the division; by an agreement in writing and recorded, and by the fence-viewers. If done in either way, it binds the parties. But no other way does. A parol agreement is not effectual, and although it may control the parties for the time being, yet it does not prevent the fence-viewers from entertaining jurisdiction. To do that, the agreement must be in writing; and that is the only agreement which the statute recognizes. Whenever, therefore, no agreement in writing has been made, either party may apply to the fence-viewers for a division. York v. Davis, 11 N. H. Rep. 241. The party, then, who wishes to have a division made by the fence-viewers, must make his application in writing. He must make it to the fence-viewers of the town in which both parties reside, or in which one resides, according to the circumstances of the case, as pointed out by the statute. They must be the fence-viewers of the town, either de jure or de facto, competent to act in the case; because none but fence-viewers are empowered by law to make the division, and the party cannot recover for money paid under the statute, to any other persons. After a party has made his application in writing for the division, to the fence-viewers, it becomes their duty to notify and hear the parties, make the division, reduce it to writing, sign it, and cause a copy thereof to be delivered to each of the parties within one week. No further duty seems to be imposed upon the fence-viewers, unless we hold that, by implication, they are required to make a return of the division to the town clerk. The statute provides that the division being recorded, shall be binding, but does not designate the person whose duty it shall be to have it returned an d recorded. It is certainly not the duty of the fence-viewers or of the parties to record it, but of the town clerk; and not — 164 — his duty without compensation; and it would seem to be left to the parties to have the division recorded or not, as they may wish to make it effectual and binding for the future. Or if returned by the fence-viewers, the town clerk may properly enough record it of his own motion. The division being made, the party making the application must pay the fence-viewers, and may recover the one-half of the other party, by action of assumpsit, &c. The division must be made upon the true line between the owners, otherwise nothing can be recovered for their services, for the fence-viewers have no power to determine the boundaries of the farms, and fix the lines. If so, they could settle not only disputes in regard to fences, but all controversies in regard to lines. They can divide the fences, but not the lands. Gallup v. Mulvah, 4 Foster’s Rep. 204. With these general suggestions, we will proceed to examine, in their order, the several exceptions taken at the trial. And, first, it was objected that the applications to the fence-viewers to make the divisions, were not recorded in the town records, with the other papers in the cases. It is contended that this was necessary, not only to make the division binding, but'to give the fence-viewers jurisdiction; and that without its being recorded, no legal division of fences has been made, and hence, no fees can be recovered. Were the question before us whether the recording of the applications was essential to a good division, one which would bind not only the parties, but all succeeding owners, it might require to be examined with considerable care. The statute in terms, however, does not require the application to be recorded. It says that “ upon application,” the fence-viewers shall make a “ division,” which, being recorded in the town records, shall be of the same force as a division made by the parties. It is the “ division” that would seem to be required to be recorded. That is the important matter to have on record; the particular parts of the fence which are to be made and supported by each party. When an — 165 — application is made in writing to the fence-viewers of a town where both the parties reside, to make division of a partition fence, within that town, they at once have jurisdiction of the case. If the application is recorded at all, it is only after the division has been made; and it would seem that once having jurisdiction, a subsequent record could not affect that question either way. But even should we hold it necessary that the application, as well as the division, should be recorded, in order to make the division binding upon all, we do not think the recording of the application essential to the maintaining of an action for fees paid the fence-viewers. It is no part of the duty of the fence-viewers to make the record. They are not recording officers of the town, and have no control over the records. When they have finished their duties, and made the division, they are entitled to their fees, and they cannot be deprived of them by the failure of the town clerk to make the record. Being once entitled to them, the applicant who pays them can recover the one-half of the other party. This objection, therefore, must be overruled. The second objection taken, viz., that it appeared that only two of the fence-viewers acted at the hearing, and signed the report, does not appear to be well founded in fact. The case finds that the notices for the hearing were signed by all three of the fence-viewers ; that they all assumed to act in the office, and did so act, without any objection to their competency by either of the parties, both of whom appeared before them. It is true that the report in one of the cases was signed by only two of the board ; but that was sufficient. Where an authority is given to two or more persons to do a private act, the act is valid to bind the principal, only when all of them concur in doing it. Andover v. Grafton, 7 N. H. Rep. 304; Story on Agency 44. But where the authority is to do an act of a public nature, if all meet for the purpose of executing it, a majority may decide. The King v. Whitaker, 9 B. & Cres. 648; Grindley — 166 — v. Baker, 1 B. & P. 229; Baltimore Turnpike, 5 Binn. Rep. 481; Co. Litt. 181, b.; Despatch Line of Packets v. Bellamy Man. Co., 12 N. H. Rep. 226. See also Rev. Stat., ch. 1, § 13; and Palmer v. Conway, 2 Foster’s Rep. 144. In the next place, it was contended that there was not a full board of fence-viewers in the town where the parties resided, at the time the division was made. Three were chosen at the annual meeting in March, but one of them did not take the oath of office till the 26th of July following, being the day on which proceedings were commenced for the division- .of these fences. The neglect to take the oath until that-time, it is said, caused a vacancy in the office, which should have been filled by the town or selectmen. The statute provides for the filling of vacancies in town offices, whenever they occur, either by death, resignation or refusal to accept, &c. Comp. Stat., ch. 38, § 1. But it does not fix the time in which an acceptance shall be signified, except in a few instances. A town treasurer must file a bond within six days after his election or appointment, and in default thereof, the office is vacant. Comp. Stat., ch. 36, § 5. And the same provision is made in regard to collectors and constables. Comp. Stat., ch. 38, § 4. But there is no provision of the kind in regard to fence-viewers. If they are present at the meeting, when chosen, and are notified of their election, they are required forthwith to take the oath, or declare their refusal. Comp. Stat., ch. 37, § 3. And in case they are not present, the town clerk is ordered forthwith to issue a notice to a constable, to notify them of their election,.and to appear within six days and take the oath of office; the constable to give the notice within four days after its reception; and penalties are imposed in case of neglect to serve the notice, or to be qualified as stated. Comp. Stat., ch. 37, §§ 4, 5, 6. These are general provisions in regard to town officers; but they apply to fence-viewers in the same manner as though specificially enacted in regard to them. Were it made to appear that the fene; — 167 — viewer in question had been duly notified of his election, as required by the statute, and had neglected to take the oath of office, as therein stated, the selectmen might, perhaps, have treated his conduct as a refusal to accept the office, and appointed another in his stead. But nothing of the kind appears, and in the absence of any time being fixed in which a vacancy is declared to exist, or of any one being appointed in his stead, we see no objection to his taking the oath at the time he did, and of his entering upon the duties of his office. It would have been better not to have had the record of the oath interlined; but still it appears to have been correctly and truly made by the town clerk, and we can discover no good reason for declaring it invalid. But a complete answer to these exceptions in regard to this fence-viewer, were there no other, is to be found in the fact that the parties appeared at the hearing, and no objection was taken to his competency by any one. This precise point was settled in Gallup v. Mulvah, 6 Foster’s Rep. 132, where it was held that, in an action brought to recover one-half of costs taxed by fence-viewers, in making a division of fence, it was no defence that one.of the board did not take the official oath till the day appointed for the hearing of the application for the division; that if a party intends to avail himself of the want of such official qualification, in any subsequent proceedings relative to the division, he must take the exception at the time of the hearing; otherwise it will be waived. The same principle was applied in Gilford’s Petition, 5 Foster’s Rep. 124, and in Goodwin & a. v. Milton, 5 Foster’s Rep. 458. The next exception was, that it was necessary for the plaintiff to show that there had been some disagreement between the parties about the division, in order to give the fence-viewers jurisdiction and authority to make it. But this point is in effect settled by York v. Davis, 11 N. H. Rep. 241, before cited. The statute does not say that the parties must disagree, but “ if they do not agree.” If there be — 168 — no agreement in writing, under the second section, the fence-viewers have jurisdiction, under the third. The next point is the only one in the case about which we have had any serious doubt. The defendant offered to prove that for more than twenty years prior to these proceedings, the parties had each respectively, without any dispute, maintained the same separate and distinct portions of these fences between them, as showing a division by prescription, and, therefore, that the fence-viewers had no authority to make the division ; and this evidence was rejected by the court. At common law, a tenant or owner was not obliged to fence against an adjoining owner or occupier, except by prescription ; but he was compelled to keep his cattle on his own land, at his peril, and to prevent them from escaping. And where there was no prescription, but the tenant had made an agreement to fence, he could not be compelled to fence, and the party injured by the breach of the agreement had no remedy but by an action on the agreement. Nowel v. Smith, Cro. Eliz. 709. In the case of a prescription to fence, he could be obliged to fence by the writ of curia claudenda, sued out by the tenant of the adjoining close, who could also recover damages by that writ. Fitz. N. B. Cu. Claud. 297. This writ is not known in the practice of this State, and probably not in this country. The authorities undoubtedly show that prescription to fence exists at common law, wherever and in whatever respects the matter is not regulated and fixed by special statutes. In this State, at a very early day, and probably before any rights by prescription to fence could have been acquired, statutes were passed requiring that the owners or occupants of lands under improvement, and adjoining, should build and repair the partition fences between them, in equal shares. The same statutes have provided for making divisions by agreement and by the action of the fence-viewers. And these statutes are the foundation of all the — 169 — obligations that, at the present day, rest upon adjoining owners to make partition fences. They are imperative in their provisions that the fences shall be made in equal shares, by an equal charge upon both parties, and are substantially the same as those now in force. No law of prescription to fence in such cases has ever been used, practiced upon or adopted here, that we are aware of, so that the statute is the only law of the State governing partition fences; and unless the parties make .an agreement in writing, which is recorded, the fence-viewers have jurisdiction. York v. Davis, 11 N. H. Rep. 241. But even were rights by prescription acquired at common law, before the passage of our statute, yet the enactment of the statute would be the governing law in all future matters upon this subject; for, although the common law generally has been and is in force in this State, yet it may at any time be altered and controlled by an act of the legislature. These statutes, then, settle the matter that the fence-viewers have jurisdiction in all cases of partition, that have had their origin since the passage of the statutes, except when the division has been made in writing, as therein provided. If any rights by prescription existed at the time of their passage, and which might be held good, none could be acquired in that way thereafter. Especially could none be acquired by these parties, in the manner proposed ; for their rights must have commenced long subsequent to the enactment of the earlier statutes. We have had some hesitation in regard to this point; but we think that the rule which we have endeavored to lay down is the true one; that although there may be prescriptions to make partition fences in this State, which the court would recognize, yet that they must have had their origin prior to the enactment of the statutes upon that subject ; and that the prescription doubtingly alluded to in York v. Davis, which was a decision made upon the statute of 1791, must have been such as existed prior to that statute. The — 170 — defendant’s proposition was to show that these parties had themselves, for more than twenty years, maintained distinct portions of the fences, as evidence of a division having been made, which would oust the fence-viewers of jurisdiction. Had the proposition been to carry the matter back for even fifty years, it would not reach the statute of 1791; and York v. Davis decides that unless that statute was complied with, in making a division by agreement, the fence-viewers would have jurisdiction. We think the defendant’s counsel is right in his position that there should be a demand for the fees paid, before an action can be sustained. The section of the statute upon which the action is founded, appears to contemplate it, and the justice of the case would seem to require it. But could a demand for a greater sum than the law allowed the fence-viewers vitiate the whole demand ? Will any fault or mistake on the part of the fence-viewers, in making up their fees, or in the applicant in paying them, render void the demand for such as may be legally due ? We think not. There is no penalty attached to the non-payment, which might require exactness and precision in the amount demanded, but simply an action of assumpsit given to recover the one-half. The defendant is in a situation to know what the legal fees are, as well as the plaintiff. He can readily obtain the items of the fence-viewers; and a tender of one-half of the legal amount would be a good answer to any action therefor. Shirley v. Shattuck, 4 Cushing’s Rep. 470. The ruling of the court was that the demand was sufficient to maintain the suit to the extent of one-half of the amount of the legal fees, and the verdict was found in accordance with this ruling; and both were correct. The ruling upon the next point was also correct. The application to the fence-viewers, in the second case, was for a division of several separate fences between the parties. A division was made of each separately. A part of these •were illegal, because the defendant was not the owner or — 171 — occupant. The defendant contended that the proceedings in all the divisions were, therefore, void; but the court ruled that those that were properly divided would stand, and the verdict was for those only. By the statute, section fifteen, which we have cited, one application may embrace several subjects; and if, on examination, some of them shall be found to be improperly included, but the division is regularly, properly and separately made upon the others, as was done here, we see no reason why the fence-viewers should not be paid for those which are rightfully divided, and the applicant who pays for them recover of the opposite party accordingly. The last exception taken to the verdict appears to have been abandoned in the argument; probably from the conclusion that it could .not be sustained. In regard to this conclusion, we have only to say that we think it entirely correct. Judgment on the verdict.