Fay v. Elliott

• Decision Date: 11 November 1891
• Citation: 154 Mass. 587,28 N.E. 1052
• Parties: FAY v. ELLIOTT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 587

28 N.E. 1052

FAY v. ELLIOTT et al.

Supreme Judicial Court of Massachusetts, Worcester.

November 11, 1891

COUNSEL

W.A. Gile, for appellant.

E.B Glasgow, for appellee.

OPINION

MORTON J.

This is an action to recover double the expense of building a division fence and the fees of the fence-viewers. The fence-viewers had required the defendant to build the fence but he did not do it, and the plaintiff built it. The right of the plaintiff to recover depends on the construction to be given to the statutes relative to the making and repairing of partition fences, and more especially of sections 2, 10, and 14 of of chapter 36, Pub.St. Section 2 provides generally that "the respective occupants of lands inclosed with fences shall, so long as the parties improve the same, keep up and maintain partition fences between their own and the next adjoining inclosures in equal shares." This section evidently relates to inclosed lands, and its object is to secure the maintenance of fences between the respective occupants of such lands so long as they are improved. It appears from the agreed facts that the defendants' land was not inclosed, and had not been and was not occupied or improved by them, unless the fact that it was leased by them for the purpose of storing carts and trucking material constituted such improvement and occupation. Neither does it appear that the plaintiff's land was inclosed, although it is stated that he was improving it by building thereon. It is clear, therefore that the plaintiff cannot recover by virtue of section 2. Section 10 provides that, "when lands belonging to two or more persons in severalty have been occupied in common without a partition fence between them, and one of the occupants desires to occupy his part in severalty, and the other refuses or neglects" to divide the line, or build a fence on his part of it when divided, the party desiring the fence may apply to the fence-viewers, and, if a partition fence is required, they may divide and assign the same, and in certain contingencies the party applying may build the whole fence, and recover of the other party double the expense of building the portion assigned to such party, with the fees of the fence-viewers. There is no doubt that the lands belonged in this case to the plaintiff and defendants in severalty, and had been occupied by them in common, within the meaning of the statute. But it is to be observed that it is only in case the occupant, not the owner, refuses or neglects to divide the line, or to build a fence where the line is divided, that the right of the other party to apply to the fence-viewers accrues. The owner may be the...