Kennedy v. Owen

• Decision Date: 27 February 1883
• Citation: 134 Mass. 227
• Parties: John Kennedy v. Louisa P. Owen
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 227

John Kennedy v. Louisa P. Owen

Supreme Court of Massachusetts

February 27, 1883

Argued September 19, 1882

Franklin. Contract. The declaration alleged that the plaintiff, on July 31, 1880, was the owner in fee and occupant of a certain tract of improved land in Greenfield that the defendant was the owner in fee and occupant of an adjoining tract of improved land; that both of these tracts of land were formerly one undivided lot, of which one Harding G. Woodard was seised in fee; that Woodard, on July 18, 1868 conveyed to one Jesse A. Coombs the defendant's land, by a deed duly recorded and containing the following condition "that the said Coombs, his heirs and assigns, shall make and maintain all fences around the granted premises;" that afterwards Coombs, under and by virtue of said condition, made and erected a partition fence between the land so conveyed to him and the remaining part of said lot which is the same as the plaintiff's land; that said fence was kept up and maintained by Coombs while he remained the owner of said land; that on September 7, 1868, Coombs conveyed said land in fee to the defendant, by deed duly recorded and containing the following condition: "that the said Owen is to make and maintain all the fences around the granted premises;" that Woodard, on February 7, 1870, by deed duly recorded, conveyed in fee the remaining part of said lot, separated by the said fence, to the plaintiff; that under and by virtue of said condition, the defendant, as owner of said land adjoining the land of the plaintiff, became bound by law to keep up and maintain the fence; that on July 31, 1880, said fence having become ruinous and out of repair, and the defendant, though often requested, having refused and neglected to repair or rebuild the same, the plaintiff complained to the fence viewers of Greenfield, of the refusal and neglect of the defendant; that the fence-viewers, after due notice to the defendant, surveyed the fence, determined that it was insufficient, signified the same in writing to the defendant, and directed her to repair or rebuild the fence within fifteen days from the date of their order; that the plaintiff afterwards rebuilt the fence, the defendant failing to comply with said order; that the fence-viewers, after due notice to the defendant, adjudged the fence sufficient and gave their certificate of the value thereof, together with their fees, the value being fixed at the sum of $ 55.62, and the costs of their proceedings at the sum of $ 9.08; that, more than one month before the date of the writ in this action, the plaintiff demanded of the defendant double the sum ascertained to be the value of the fence, and also double the amount of the fees and costs of the fence-viewers; that the defendant had for more than one month after said demand, and ever since,...