Hubbell against Peck, 15 Conn. 133

Storrs, J. The defendant, by placing a part of his post on the plaintiff’s land, was prima facie a trespasser ; and therefore, it was incumbent on him to shew some excuse or justification for such act. Regularly, such excuse or justification should have been pleaded specially ; but as no objection appears to have been made to its introduction under the general issue, a new trial would not be granted on that ground. The validity of the defence set up by the defendant, is, therefore, properly before us for decision.

He claims, that said post would form the termination and a part of the divisional line between his land and that of the plaintiff; and therefore, that he was justified in so placing it, by the second

section of the “ Act concerning Fences and Common Fields,” which provides, that, when adjoining proprietors make a divisional fence, the posts shall stand in the dividing line. Stat. p. 250. (ed. 1838.) Assuming that the defendant had a right to erect a divisionaljfence on the line between him and the plaintiff, without the concurrence of the latter; and that, if he had done so, he would have been justified in placing the post as he has done in this case; it is a sufficient answer to this ground of defence, that in doing the act complained of, he was not in the exercise of that right.

The act, therefore, was not done for a legal cause. He was not erecting a divisional fence, but a front fence, and the statute applies to the former only. The plaintiff derived no benefit from the latter ; the statute does not compel him to contribute towards its erec-lion ; he has no interest in it; and there is no reason why any part of it should be placed on his land.

If there was a divisional fence between the parties, the post would indeed form a part of it, and so would have been lawfully placed in part on the plaintiff’s land ; but it is difficult to conceive how there can be a justification for placing it in that manner, as being a part of a divisional fence, when no such fence existed or was contemplated; and the law does not allow of its being so placed as a part of any other.

If the defendant had been erecting, not only a front fence, but also a divisional one, he might have justified himself in placing the post as he did, as being a part of the latter; but it is not claimed, that such was the case, and the defence is not put on this ground. If the question had arisen on a special plea of justification, it is plain that the defence would fail. The plea must have stated the material fact that the post was part of a fence which the defendant had erected, or was erecting, on the dividing line ; and upon a denial of the averment, the issue must have been found in favour of the plaintiff.

A plea that it was part of a front fence merely, would obviously be bad. This conclusively tests the principle involved in the case. It is one of very considerable practical importance, especially in thickly settled places, where the owners of adjoining lands might choose to erect different kinds of fences in front of them ; and much contest, injustice, and inconvenience might ensue from the adoption of the principle claimed by the defendant. We, therefore, advise a new trial. In this opinion the . other Judges ultimately concurred ; Hinman, J., having a different impression at first. New trial to be granted.