Bernard Alger vs. John Pool, Jr., 11 Cush. 450

Dewey, J. The whole question here turns upon the legal effect of the first assignment by fence viewers of a partition fence between the parties. If this was a legal assignment, then the instructions to the jury were wrong. By the Rev. Sts. c. 19, § 5, it is provided that when any controversy shall arise, about the rights of the respective occupants in partition fences, and their obligation to maintain the same, an assignment to each of his share, may be made by two or more fence viewers, and after such assignment, “ they shall be obliged always thereafter to maintain their respective part of said fences.”

Section 15 provides, “ that the several owners of such land, and their heirs and assigns, forever, shall erect and support said fences, agreeably to such division.” Under the provisions of this statute, it is in the opinion of the court, competent for fence viewers to assign to the adjacent owners their respective shares of fence in a portion of the entire line between them. A division by fence viewers would ordinarily embrace the whole continuous line of fence between two adjacent proprietors.

But a division may be legal, although the assignment to the parties does not include the entire line of the land of the adjacent owners. As was said by the court in Prescott v. Mudgett, 1 Shepley, 423, “ there was no occasion for the interposition of the fence viewers, except for such portion of the line as was in dispute. The statute requires that partition fences shall be divided in equal halves, but it is not necessarily to be understood that the whole portion of each should be contiguous.” Our statute is much of the same import as that of the state of Maine.

We do not think a partition that does not embrace the entire line, for that cause necessarily invalid. It may be, if the adverse party shall appear before the fence viewers upon the notice given him, and demand a partition of the whole line of occupied lands, that it would be the duty of the fence viewers to make such entire partition. That would, however, depend upon the particular circumstances of the case, the fact of former assignments, or other legal liabilities, already existing as to portions of the fence between the adjoining enclosures.

If not objected to, after due notice from the fence viewers, an assignment of a portion of the fence may be made upon the application of one of the adjacent owners of land, requesting such partition of a part; and such assignment, when duly made, would by virtue of Rev. Sts. c. 19, §§ 5,15, be binding on the parties, and require them to erect and maintain partition fences accordingly. There is nothing in the case before us to show that any objection was made at the time to the first assignment, or that the case was one requiring a partition of the entire line of boundary between the parties. New trial ordered