Emery v. Maguire

• Decision Date: 08 January 1895
• Citation: 32 A. 781,87 Me. 116
• Parties: EMERY v. MAGUIRE.
• Court: Maine Supreme Court

32 A. 781

87 Me. 116

EMERY

v. MAGUIRE.

Supreme Judicial Court of Maine.

Jan. 8, 1895.

(Official.)

Report from superior court, Kennebec county.

Action by Henry Emery against James Maguire. Plaintiff nonsuit.

J. A. Sheehan, for plaintiff.

P. E. Southard, for defendant.

PETERS, C. J. This is an action by the plaintiff to recover of the defendant the statutory penalty for the latter's neglect to build a parcel of division fence on a line between their respective estates as coterminous proprietors. It is claimed by the plaintiff that proper proceedings were had under the statutes, and that his claim has been legally established by an adjudication of fence viewers in his favor.

We see, however, no way to escape the conclusion that the proceedings must be declared to be void upon either one of two grounds of objection presented by the defendant.

First. In all the notices given by the fence viewers to the parties, directing any meeting on the premises, a day certain is named with the following qualification annexed thereto: "Unless very stormy, and, if very stormy, on the next pleasant day following, except Sunday." This notice would serve its purpose provided the parties appeared in pursuance of the same. But it nowhere is shown that the defendant paid any attention to the proceedings at any time. The notices should have been unqualified and unconditional. For this defect the proceedings are void.

Second. The fence viewers do not, in their adjudication, declare the fence built by the plaintiff to be "sufficient." For this reason, also, are the proceedings void. Briggs v. Haynes, 68 Me. 535.

Plaintiff nonsuit.