O'malley v. Meyer

• Citation: 221 Mass. 198,108 N.E. 1066
• Parties: O'MALLEY v. MEYER.
• Decision Date: 22 May 1915
• Court: United States State Supreme Judicial Court of Massachusetts

221 Mass. 198

108 N.E. 1066

O'MALLEY v. MEYER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1915

COUNSEL

Walter

J. O'Malley, Jr., Wm. Flasherty, and Jas. P. Cleary, Jr. all of Boston, for appellant.

Harry Bergson, of Boston, for appellee.

OPINION

CARROLL J.

This is a suit under R. L. c. 33, to recover double the value of one-half of a division fence erected by the plaintiff between her premises and the premises adjoining owned by the defendant.

In response to an oral application made by the plaintiff to one of the fence viewers of the city of Boston, 'for a division fence between the estate of the plaintiff and the estate of the defendant,' the parties were notified to be present on the premises at a hearing to be had on June 13, 1913, at 10:30 a. m. 'relative to a division fence between properties.' At this hearing the defendant did not appear. Failing to find the boundary line, the fence viewers had the premises surveyed, and on June 19, 1913, sent by mail to the defendant a notice requiring him to build within 15 days, 'your half of a picket fence, * * * this fence to be built on division line as shown by nail in stake driven into ground at sidewalk line of street, and by nail driven into back yard fence and marked with red pencil. * * * Should you dispute this division line, you are requested to submit to the fence viewers a survey of your premises showing the correct line as you believe it to be, within five days.'

A notice substantially the same was sent by mail to the plaintiff. After the plaintiff built the entire fence, and on July 28, 1913, the fence viewers, after an examination of it notified the defendant in writing that they adjudged it to be 'a sufficient fence within the law and to have the value of fifty cents per lineal foot for the whole length of one hundred fifteen (115) feet, a total value of $57.50.'

The fence viewers made no assignment showing what particular portion of the fence was to be erected by each of the adjoining owners and they passed no order specifying the definite part of the fence each of the parties was to keep in repair. Sections 3 and 4 of R. L. c. 33, apply to a condition of affairs where the repair or rebuilding of an existing fence is in dispute and where one of the occupants refuses to keep his part in repair, claiming that no fence is necessary and if one is necessary, the already existing fence is sufficient. Under these sections of the statute the share of each owner already has been assigned and the only purpose of the fence viewers' action is to determine whether the existing fence is a sufficient fence. Sections 5 and 6 govern a case where a partition fence already has been built, but never has been divided, and the part which each of the occupants should keep in repair is in dispute. Sears v. Inhabs. of Charlemont, 6 Allen, 437; Leonard v. Lyon, 210 Mass. 248, 96 N.E. 670. Where no partition fence has been erected between adjoining lands and one of the owners seeks to have one erected, his application to the fence viewers should be made under section 13; and if the division line between the parties is in dispute or unknown, the fence viewers have the authority under this section, to designate a line on which the fence is to be built.

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