Ropes v. Flint

• Decision Date: 08 January 1903
• Parties: ROPES v. FLINT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 473

65 N.E. 812

ROPES v. FLINT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 8, 1903

COUNSEL

A. J. Selfridge, for appellant.

Smith Ludden & Ludden, for appellees.

OPINION

BARKER, J.

The plaintiff and the defendant Flint are owners of adjoining lands, and upon the division line between the lands is an ancient stone wall, about 44 rods in length. In the year 1821 the fence viewers set off to Flint's predecessor in title the half of the division line next the road, and to the plaintiff's predecessor in title the other half. Each owner, upon this assignment, built upon his part of the line a stone wall, which still remains in place, but for a long time has been less than four feet high. In the spring of 1901 Flint took down and carried away about 60 feet of the wall on that part of the line assigned to his predecessor in title and thereafter, at the request of the plaintiff, erected to her satisfaction a wall in place of the part he had taken away. This did not close the controversy between the plaintiff and Flint as to the wall. Neither party knew of the action of the fence viewers had in 1821, and in August, 1901 Flint called out the fence viewers by a petition representing that a controversy had arisen between the plaintiff and himself as to their respective rights in the partition fence and their obligations to maintain the same. Upon this petition the fence viewers acted, and in December, 1901, they and the landowners being still ignorant of the assignment of 1821, made an order assigning to the plaintiff the same half of the line which in 1821 had been assigned to her predecessors in title, and to Flint the same half which by the first assignment had been assigned to his predecessors in title. Thereafter the plaintiff brought this bill against Flint and the fence viewers of 1901. After answer and replication the case was heard by a judge of the superior court, the evidence at the hearing being taken and reported by a commissioner appointed under equity rule. The judge entered a final decree, which, after reciting that he found certain facts stated in the decree, dismissed the bill, with costs, and the case comes here upon the plaintiff's appeal.

The bill has a double aspect. In the first place, it seeks to have the action of the fence viewers in 1901 declared void and their assignment canceled, and stricken from the records of the town, not only because of the previous action of the fence viewers of 1821, but also because the viewers of 1901 were biased and partial, and because they fraudulently and wickedly conspired with Flint to injure the plaintiff under color of legal authority. In the second place, the bill goes upon the ground that the complainant has a right to have the wall left undisturbed, and to have Flint restrained from moving or in any way interfering with it, or with so much of the plaintiff's land as is under the wall. The defense of multifariousness is not taken. At the beginning of the hearing the court ruled that so far as the plaintiff sought relief distinctly against the fence viewers, or to affect the record of their action, the plaintiff could not have it under the bill; but the judge did not then deal with the question whether the plaintiff could try the validity of the action of the fence viewers upon the question of her rights as against Flint. This left ...