Cobb v. Corbitt

• Decision Date: 28 April 1886
• Citation: 3 A. 732,78 Me. 242
• Parties: COBB v. CORBITT.
• Court: Maine Supreme Court

3 A. 732

78 Me. 242

COBB

v. CORBITT.¹

SUPREME JUDICIAL COURT OF MAINE.

Filed April 28, 1886.

On exceptions by defendant.

Bisbee & Hersey, for plaintiff.

John P. Swasey, for defendant.

FOSTER, J. The plaintiff and defendant are occupants and owners of adjacent lands. Having disagreed respecting their obligation to maintain a partition fence between them, on application of the plaintiff, the fence viewers of the town, after due proceedings, in relation to which no question is raised, assigned to the parties their respective shares in such partition fence. By this assignment the plaintiff was to build a certain specified portion of the fence in the center, and the defendant was to build the residue at each end. The time having elapsed in which each was to build his part of the fence, the plaintiff, having built a part only of the fence thus assigned to him, proceeded and built that portion of the fence assigned to the defendant atone end of the line; the remaining portion assigned to the defendant, and a part of that assigned to the plaintiff, never having been built. This action is brought under sections 5 and 6, c. 22, Rev. St., to recover double the value of so much of that part of the division fence as was assigned to the defendant and built by the plaintiff.

The defendant makes no objection to the regularity of the proceedings of the fence viewers in matter of form, but contends that the plaintiff is not entitled to recover in this action upon other grounds. His position is that the plaintiff, having built only a portion of that part of the fence assigned to the defendant, is not entitled to recover double the amount expended in building only such portion, the remainder never having been completed. And such is the opinion of the court. The remedy being one afforded by statute, the plaintiff, to entitle himself to a recovery, must show a compliance with its provisions. He is not entitled to enforce the statute penalty against the defendant, for his own benefit, until he has performed what the law requires at his hands. Such remedy is penal as well as remedial, and will not be extended by implication to cases not clearly embraced within the provisions of the statute which the plaintiff invokes in his own behalf. Abbott v. Wood, 22 Me. 541; Wood v. Adams, 35 N. H. 36.

That part of the statute under consideration (section 6) provides that, "if any party refuses or neglects to build and maintain the part thus assigned him, it may be done by the...