Kennedy v. Owen
| Decision Date | 22 October 1881 |
| Citation | 131 Mass. 431 |
| Parties | John Kennedy v. Louisa P. Owen |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Franklin. Contract on the Gen. Sts. c. 25, § 4, to recover double the value of a partition fence, which the declaration alleged the plaintiff had rebuilt, and the defendant was bound to maintain; and double the amount of the fees of the fence-viewers for their services in relation thereto. Answer, a general denial. Trial in the Superior Court, without a jury, before Colburn, J., who ruled that the plaintiff could not maintain his action; found for the defendant; and, at the plaintiff's request, reported the case for the determination of this court. If the ruling was right, judgment was to be entered for the defendant on the finding; otherwise, judgment for the plaintiff for such sum as he was entitled to recover. The pleadings were made part of the report. The facts, so far as material to the point decided, appear in the opinion.
Judgment for the defendant.
C. G Delano, for the plaintiff.
G. D Williams, for the defendant.
We have not found it necessary to consider the questions raised by the report as to the legality and regularity of the proceedings of the fence-viewers, because one fact appears which is decisive against the right of the plaintiff to maintain this action. It was admitted at the trial, "that no part of the fence built by the plaintiff was built upon the line between his premises and those of the defendant, except at one point where it crossed the line, some of it being one side the line and some the other." The statute under which the plaintiff proceeded does not in precise terms fix the line upon which a partition fence is to be built, but by necessary implication it provides that it must be built upon the line which divides the premises of the parties, if this is known and undisputed. Gen. Sts. c. 25. It cannot lawfully be built upon any other line except by agreement of the parties. The plaintiff had the right to build the fence upon the division line, placing one half upon his land and one half upon the defendant's land, but he had no right to build any part of it wholly upon the defendant's land. That part of the fence built by the plaintiff upon the defendant's land was a private nuisance, which the defendant could lawfully abate and remove. Newell v. Hill, 2 Met. 180. Sparhawk v. Twichell, 1 Allen 450.
The plaintiff's right to recover depends...
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Deane v. Garniss
...the division line ‘is in dispute or unknown’ to ‘designate a line’ for the purpose of a fence. Currier v. Esty, 116 Mass. 577;Kennedy v. Owen, 131 Mass. 431. Compare Fay v. Elliott, 154 Mass. 587, 589, 28 N.E. 1052. Both these sections originated in St.1863, c. 190, § 1. Fence viewers, as a......
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Deane v. Garniss
...practice in this Commonwealth. Newell v. Hill, 2 Met. 180. Holbrook v. McBride, 4 Gray, 215. Sparhawk v. Twichell, 1 Allen, 450. Kennedy v. Owen, 131 Mass. 431 . Ropes Flint, 182 Mass. 473 . Quinn v. Crimmings, 171 Mass. 255 . Hubbell v. Peck, 15 Conn. 133. Warren v. Sabin, 1 Lans. (N.Y.) 7......
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De Senancour v. Societe La Prevoyance
...the report of the case, and it cannot be considered open. Gardner v. Hazelton, 121 Mass. 494; Doherty v. Munson, 127 Mass. 495; Kennedy v. Owen, 131 Mass. 431; Butterworth v. Co., 132 Mass. 489; Perry v. Porter, 124 Mass. 340; O'Brien v. Clement, 15 Mees. & W. 437; Bromage v. Prosser, 4 Bar......
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Russell v. Page
... ... against these defendants. Willey v. Durgin, 118 ... Mass. 64; Ames v. Stevens, 120 Mass. 218, 266; ... Burghardt v. Owen, 13 Gray, 300; Gaylord v ... Norton, 130 Mass. 74; Maynard v. Frederick, 7 ... Cush. 247 ... A. & J.R. Churchill, for ... be brought in the name of the referees, is a question not ... raised upon the report. Kennedy v. Owen, 131 Mass ... 431. The ground upon which the defendants have placed their ... case, viz., that they are under no liability to pay for the ... ...