MICHAEL H. BUTLER, Plaintiff in Error, vs. JOEL BARLOW, Defendant in Error, 2 Wis. 10

By the Gourt, Crawford, J. Assuming that the fence-viewers had jurisdiction in this matter, and we are inclined to think they had, a proper construction of sections 5 and 8, of

chapter 14, of the Revised Statutes, will dispose of the case.

Section 5 is as follows : “ When any controversy shall arise about the rights of the respecctive occupants, in partition fences, or their obligation to maintain the same, either party may apply to two or more fence-viewers of the town 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 town 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.” The power conferred upon the fence-viewers by this

section is merely to assign in writing to each of the adJ°iaiag occupants of enclosures Lis share of the par-fence or fences, and also to direct the time within which they shall respectively erect or repair p0rf¿ori 0f gucR fence so assigned to each of them in the manner provided in

section 1. Beyond this the fence-viewers can determine nothing under

section 5, but their determination or assignment is conclusive rrpon the parties and their successors in the occupancy of the lands just so far as they have decided the share of each, and the time of repairing or erecting the same, and no farther.

Section 8 is as follows : “ When in any controversy that may arise between occupants of adjoining lands, as to their respective lights in any partition fence, it shall appear to the fence-viewers that either of the occupants had, before any complaint made to them, voluntarily erected the whole fence, or more than his just share of the same, or otherwise become proprietor thereof, the other occupant shall pay for so much as may be assigned to him to repair or maintain, the value of which shall be ascertained and recorded in the manner provided in this chapter.” By virtue of this section, when either party had voluntarily erected more than his just proportion of the partition fence, which fact should be ascertained and determined by the fence-viewers, they could only assign the proportion of the fence to be thereafter repaired or maintained by each, and ascertain the value of that portion of the fence which had been voluntarily erected by the party beyond his just proportion thereof.

This is the extent of the power conferred upon the fence-viewers by this section, and although the occupant of the adjoining lands who did not contribute to the erection of the fence, is by this

section required to pay “for so much as may be assigned h> him. to repair,” yet the payment or non-payment of tbe value so ascertained is a question not to be determined by tbe fence-viewers, and over -which they have no control whatever. Although the statute is a salutary one, and ought to be liberally construed in furtherance of the object of its enactment, still we must bear in mind that it is in derogation of the common law rights of parties, and creates a species of tribunal for the determination of certain specified matters, from which determination there is no appeal provided.

Hence we are called upon to see that their determination shall embrace no other matters than such as are specially confided to their jurisdiction by the statute.

It is certainly enough when it is conceded to two fence-viewers to fix definitely the value of that portion of a partition fence built by another, which shall be paid for and kept in repair by his neighbor who has had no voice in choosing the materials or limiting the expense of the structure, without giving to them by implication a final control of other and extrinsic questions, in the decision whereof the party ought to have the privi-ilege of resorting to the ordinary tribunals and modes of proceeding contemplated by the constitution and laws of the land.

Any other view of the subject would tend to confer upon inferior and limited jurisdiction, powers which are not given to the constitutional tribunals of the country, and which in' some cases might be arbitrarily exercised, to the great injury of the citizen who is not provided with the means of resorting to any other forum for a correction of an unjust decision. It appears that upon the trial of the cause before justice °f Peace) defendant offered to prove that previous to any proceedings by the fence-viewers, one Gr. H.

Davis, from whom the defendant, Bar-j0W} pat| 0p^aine(j the lands occupied by him, had paid the plaintiff, Butler, for the construction of this whole partition fence, and that after making such payment, Davis conveyed the lands to Barlow. This evidence was rejected by the justice.

The defendant also offered to prove that the lands occupied by Butler were, at the time of the construction of the fence in controversy, the property of Davis, with whom Butler had a contract for purchase, in which contract Butler agreed to build the same fence in part payment for the land, and that Butler had received credit for the building of the fence from Davis, who con' veyed the land to Butler, after which Davis conveyed the adjoining land to the defendant, Barlow. The justice refused to permit this evidence to be given. .

This evidence tended directly to destroy the plaintiff’s cause of action, and it would be difficult to justify its exclusion upon any principle of law or justice. The nature of the enquiry before the fence-viewers forbid the production of proof of payment before them, for they had no right to determine such a question; and if the defendant in a suiff to recover the value of the fence, as ascertained and assessed by the fence-viewers, were to be prevented from proving that the fence had been paid for, the plaintiff might, under the forms of law, obtain judgment twice.

The return of the justice of the peace, to the writ of certi-orari in this case, fully justified the County Court in reversing the judgment of the justice; and therefore the judgment of the County Court must be affirmed.