Megquier v. Bachelder

• Decision Date: 21 November 1914
• Citation: 112 Me. 340,92 A. 187
• Parties: MEGQUIER v. BACHELDER.
• Court: Maine Supreme Court

92 A. 187

112 Me. 340

MEGQUIER

v. BACHELDER.

Supreme Judicial Court of Maine.

Nov. 21, 1914.

Report from Supreme Judicial Court, Penobscot County, at Law.

Action by Edward D. Megquier against George A. Bachelder. On report. Judgment for defendant.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and PHILBROOK, JJ.

W. H. Powell, of Old Town, and Geo. H. Morse, of Bangor, for plaintiff.

E. M. Simpson, of Bangor, for defendant.

SPEAR, J. This is an action brought under section 5 of chapter 26 of the Revised Statutes to recover the value of one-half of a partition fence between the plaintiff and defendant and the fees of the fence viewers in making the division. No legal division had been made of the fence between the plaintiff and defendant by any of the methods known to the law. But the plaintiff built the whole fence upon the disputed line, the defendant's as well as his own, and then invoked the authority of section 5 both for a division of the fence and a right of action for building the defendant's half.

It may here be observed that the plaintiff's remedy is purely statutory. An adjoining owner could not be compelled by common law to build any part of a division fence. He had, however, to keep his cattle upon his own land at his peril. Accordingly an adjoining owner could not build the entire fence and make the other pay for one-half or any part of it But this condition of neutrality was not satisfactory, and the statute was enacted to relieve it, so that, if one owner refused or neglected to build his share of the fence, he could be made to do so or have it built for him. But the procedure by which this could be done was prescribed wholly by the statute. The scheme of the statute was to give a tribunal, called fence viewers, jurisdiction over the division of fences of adjoining owners, to the extent of compelling the delinquent owner either to build his part of the fence or pay his neighbor for building it for him. But this jurisdiction is made to depend upon certain preliminary requirements, among which is proof of a division of the fence in controversy (1) by an assignment made by the fence viewers, (2) by agreement of the parties, or (3) by prescription, based upon the presumption of a division, the evidence of which is lost. This conclusion seems to be fully sustained by an analysis of the sections of the statute providing the procedure necessary to give jurisdiction to the fence viewers.

Section 1 specifies what constitutes a lawful fence.

Section 2 specifies when adjoining owners must maintain a fence.

Section 3 specifies the method of compelling a delinquent to repair or rebuild his legal part of the fence, and is based upon a presupposed division between the parties; that each knows the portion he is required to build.

Section 4 prescribes complainant's rights for having built his neighbor's fence, as provided in section 3. All these sections are based upon the assumption of an existing division.

Section 5 is entirely independent of the four preceding sections, assuming the application of section 2, and prescribes the method to be pursued by a complainant when no legal division of the partition fence exists and the parties disagree respecting their rights, namely: (1) An application of one of the parties to the fence viewers. (2) Notice to each party. (3) Assignment of part to be built by each. (4) Limit of time in which to build. (5) Record of the assignment. The last clause of this section then goes on to say: "If such fence has been built and maintained by the parties in unequal proportions," the fence viewers may determine the value of such excess, and an action may be maintained to recover it.

Under this provision the plaintiff contends that, before any division by any of the methods above recited, he was authorized, a disagreement having arisen, to go on and build the entire line of...