Deane v. Garniss
| Decision Date | 02 April 1936 |
| Citation | 294 Mass. 221 |
| Parties | MARY E. DEANE v. JENNIE H. GARNISS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
February 5, 1936.
Present: RUGG, C.
J., CROSBY, PIERCE FIELD, DONAHUE, LUMMUS, & QUA, JJ.
Fence. Municipal Corporations, Officers and agents.
Words "Improved.
"
Under G. L. (Ter Ed.) c. 49, Section 10, fence viewers may order a partition fence between adjoining occupants without ordering full fencing of either or both parcels.
Under G. L. (Ter Ed.) c. 49, Section 10, adjoining lands owned in severalty are "occupied in common" until there has been a separation by a partition fence.
Fence viewers under G. L. (Ter. Ed.) c. 49, Sections 10, 5, having ascertained and certified the value of the part of a fence which one of the occupants of adjoining lands had refused to build after being directed to do so and which the occupant of the other land thereupon had built, did not invalidate their proceedings under the statute by including in their certificate an order to the delinquent occupant to pay to the other occupant double such value, although the statute did not require such order by them.
The mere fact that fence viewers, in ordering the building of a partition fence under G. L. (Ter. Ed.) c. 49, Section 10, directed what kind of fence should be built, did not invalidate the proceedings by them nor constitute a valid defence to an action by one of the adjoining occupants against the other for double the value, determined by the fence viewers, of the part of the fence which had been assigned to the defendant to erect, which he had refused to erect, and which the plaintiff thereupon had erected, it appearing that the fence which had been ordered and which had been erected was "legal and sufficient" under the provisions of
Section 2 of the statute.
CONTRACT under G. L. (Ter. Ed.) c. 49, Section 10. Writ in the First District Court of Eastern Middlesex dated June 6, 1933.
Judgment for the plaintiff was ordered by Brooks, J. A report to the Appellate Division for the Northern Division was ordered dismissed. The defendant appealed.
The certification of the fence viewers dated May 3, 1932, was directed only to the defendant, certified that they found the fence "to be built according to law," that they appraised the value of the half which had been assigned to the defendant to build to be $46, and ordered, directed and decreed "that you, the said Jennie H. Garniss, pay to the said Mary E. Dean, $92.00, twice the value of the one-half of said fence."
The case was submitted on briefs at the sitting of the court in February, 1936, and afterwards was submitted on briefs to all the Justices.
G. M. Poland & E.
D. Sharkey, for the defendant.
A. W. Eldredge, for the plaintiff.
The facts are agreed. The parties own and occupy adjoining improved parcels of land on Franklin Street in Melrose. The plaintiff applied to the fence viewers of Melrose to order a partition fence. The fence viewers, being duly appointed and sworn, notified and heard the parties, and on March 31, 1932 ordered, directed and decreed "that a division line fence is necessary between the two premises to prevent trespassing and damaging the property of the petitioner by the respondent," and that within twenty days the petitioner erect and maintain the southerly half of the fence and the respondent erect and maintain the northerly half of the fence. The plaintiff built her part of the fence within the time prescribed, but the defendant refused to do anything. The plaintiff then built that part of the fence which the defendant had been ordered to erect. The fence viewers, after notice to the parties, viewed it, adjudged it sufficient, ascertained and determined its value and their fees, and made a certificate under their hands accordingly on May 3, 1932. The plaintiff demanded of the defendant payment of $92, double the ascertained value, and after the defendant had neglected for a month or more to pay, brought on June 6, 1933, this action of contract to recover that amount with interest. The judge found for the plaintiff, and the Appellate Division affirmed his decision. The defendant appealed.
The laws under which the occupant of land may require his neighbor to share in the expense of building and maintaining a partition fence originated in the need of preventing trespasses by cattle and other domestic animals. At common law, no landowner was required to fence against a neighbor's land. Each owner was bound to keep his cattle from passing from his own to his neighbor's land, and was liable for their trespasses. Rust v. Low, 6 Mass. 90. Thayer v. Arnold, 4 Met. 589. Sheridan v. Bean, 8 Met. 284. Eames v. Salem & Lowell Railroad, 98 Mass. 560 . Lyons v. Merrick, 105 Mass. 71 . Boston & Albany Railroad v. Briggs, 132 Mass. 24 , 26, 27. Walker v. Nickerson, 291 Mass. 522 . G. L. (Ter. Ed.) c. 49, Section 29.
A duty to fence against the land of a neighbor may be imposed in one of three ways: (1) by agreement, which may take the form of a covenant running with the land (Rust v. Low, 6 Mass. 90; Bronson v. Coffin, 108 Mass. 175; S. C. 118 Mass. 156; Boston & Albany Railroad v. Briggs, 132 Mass. 24; Kennedy v. Owen, 134 Mass. 227; Knox v. Tucker, 48 Maine, 373, 376; G. L. [Ter. Ed.] c. 49, Section 11); (2) by prescription (Bronson v. Coffin, 108 Mass. 175 , 185; Knox v. Tucker, 48 Maine, 373); or (3) by assignment by the fence viewers of a city or town under G. L. (Ter. Ed.) c. 49. A landowner who suffers, through his own failure to perform his duty to fence, from the trespasses of cattle, lawfully on the neighboring land, cannot recover. G. L. (Ter. Ed.) c. 49, Section 29. Rust v. Low, 6 Mass. 90 . Thayer v. Arnold, 4 Met. 589, 590. Hartford v. Brady, 114 Mass. 466 . McDonnell v. Pittsfield & North Adams Railroad, 115 Mass. 564 . Byrnes v. Boston & Maine Railroad, 181 Mass. 322. Knox v. Tucker, 48 Maine, 373. Failure to perform such a duty may result also in liability for damages. Pool v. Alger, 11 Gray, 489. Fales v. Cole, 153 Mass. 322 . We are concerned in this case only with assignment by fence viewers, and with the remedy provided for failure to obey their orders.
The provisions for assignment by fence viewers deal with occupants, not with owners as such. Friedman v. Jaffe, 206 Mass. 454 . They do not apply unless both parcels are "improved." Eames v. Salem & Lowell Railroad, 98 Mass. 560, 565. James v. Tibbetts, 60 Maine, 557. Various sections indicate this. G. L. (Ter. Ed.) c. 49, Sections 3, 12. Section 11 provides that if a person both "lays his land common" and "determines not to improve" any part adjoining the fence, and gives six months' notice, his obligation to maintain a fence shall cease. Field v. Proprietors of Common & Undivided Land in Nantucket, 1 Cush. 11, 15. The word "improved" is used in contrast to "wild." Pasture land is "improved" land within the statute, as is shown by Section 13 and by the case last cited. Chase v. Jefts, 58 N.H. 280. But a majority of the court are of opinion that there is no requirement, as contended by the defendant, that both parcels, or either parcel, be fully enclosed with fences. G. L. (Ter. Ed.) c. 49, Section 3, placing upon "the occupants of adjoining lands enclosed with fences" the duty of maintaining the fences in equal shares "so long as both of them improve" their lands, does not set limits to the power of fence viewers to order partition fences, but merely states one situation in which a general duty is imposed even before it is made specific by assignment. Fay v. Elliott, 154 Mass. 587 , 588, where the same argument was made as in the present case. See also Rust v. Low, 6 Mass. 90, 100, 101.
Various sections give fence viewers jurisdiction. G. L. (Ter. Ed.) c. 49, Section 4, provides for cases where the fence has already been divided and the duty to maintain part of it has already been assigned to each party, and one party refuses or neglects to perform his duty. Once established, the duties of the parties are not subject to modification upon new proceedings. Baker v. Lakeman, 12 Met. 195. Alger v. Pool, 11 Cush. 450. Sears v. Charlemont, 6 Allen, 437. Ropes v. Flint, 182 Mass. 473 . Section 6 provides for the settlement of a "dispute" concerning the "part of a partition fence which under this chapter each party is required to build or maintain," and presupposes an existing fence though not an established and assigned duty. O'Malley v. Meyer, 221 Mass. 198 , 199, and cases cited. Megquier v. Bachelder, 112 Maine, 340.
The jurisdiction of the fence viewers over the present case was based on G. L. (Ter. Ed.) c. 49, Section 10. That section provides that "if land belonging to two persons in severalty has been occupied in common without a partition fence, and one of the occupants desires to occupy his part in severalty," and the other refuses or neglects on demand to divide the line and build his share of the fence, the line may be divided and assigned by the fence viewers. Until St. 1863, c. 190, at least, this was the only section under which the building of a fence could be required where none had existed before. In view of the original statutory purpose of restraining animals from trespasses, parcels of land owned in severalty are "occupied in common" within Section 10 if no partition fence exists that would prevent such trespasses. No other community of use is required. Fay v. Elliott, 154 Mass. 587, 588. See also Thayer v. Arnold, 4 Met. 589, 594.
The defendant does not raise the point that no formal preliminary demand, prior to the application to the fence viewers, was shown. For that reason, we need not consider whether, as was suggested in O'Malley v. Meyer, 221 Mass. 198, 199, 200 resort may be had in aid of jurisdiction to Section 18 giving...
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