John Prescott, in error, vs. Lewis Mudgett, 13 Me. 423

After a continuance, the opinion of the Court was drawn up by WestoN C. J. — The case finds, that with respect to a part of the partition fence, between the inclosures of the parties, there was no controversy or dispute. We must understand, that they bad themselves divided that portion between them, and that such division was equal, effectual and satisfactory. There was no occasion then for the interposition of the fence-viewers, except for such portion of the line, as was in dispute.

When that should be divided, there would be a division of the whole distance; a portion being divided by the parties, and the residue by the fence-viewers. We cannot perceive that the statute requires that (he decision of the fence-viewers should extend beyond, or cover more, than the fence in dispute. The statute requires, that partition fences should be divided in equal halves; in other words, equally. Each should make half the fence; but it is not necessarily to be understood, that the whole portion of each should be contiguous.

One portion may be more distant from the residence of both parties, than the other; or may be from the nature of the ground more expensive or difficult to make. Equality would in such case, be best promoted by assigning to each a portion of the nearer and less difficult, together with a portion also of the more remote and more difficult. If the objection now taken by the plaintiff in error, had been taken before the fence-viewers, who proceeded in the presence of both parties, they would doubtless have divided the whole line.

Not having been then made, it must be inferred that both parties were satisfied to abide by their own division.