Trego v. Pierce

• Decision Date: 05 March 1888
• Docket Number: 248
• Citation: 12 A. 864,119 Pa. 139
• Parties: HANNAH M. TREGO v. J. N. PIERCE
• Court: Pennsylvania Supreme Court

12 A. 864

119 Pa. 139

HANNAH M. TREGO v. J. N. PIERCE

No. 248

Supreme Court of Pennsylvania

March 5, 1888

Argued February 8, 1888

ERROR TO THE COURT OF COMMON PLEAS OF CHESTER COUNTY.

No. 248 January Term 1887, Sup. Ct.; court below, No. 124 January Term 1886, C.P.

The cause in the court below was an appeal by the plaintiff from the judgment of a justice of the peace in an action by Hannah M. Trego against Joshua N. Pierce, to recover contribution to the cost of a division fence between the lots of the respective parties. The facts sufficiently appear from the charge of the court, FUTHEY, P.J., at the trial on November 10, 1886, which was as follows:

The parties to this action, Hannah M. Trego and Joshua N. Pierce are the owners of adjoining properties, separated by a fence in the borough of West Chester, fronting on High street and running back two hundred feet to an alley.

The plaintiff recently improved her property, by tearing down the old houses and building new houses. She also erected a new fence between the properties, extending about half the distance back to the alley, and called upon the fence viewers, the auditors of the borough of West Chester, to view the half of the fence extending to the alley from where the fence thus erected terminated. . . .

The notice to the auditors was given in accordance with an act of assembly passed in 1842, P.L. 62, which provides that the fence viewers may be called upon to view any line fence between adjoining owners and make report thereon. The act of assembly originally made this the duty of township auditors but by a supplemental act of March 3, 1847, P.L. 200, it was extended to borough auditors. . . .

In pursuance of the request of the plaintiff, the fence viewers examined the fence in controversy, the defendant having been notified to be present, and made the following report: --

The undersigned auditors and fence viewers of the borough of West Chester, having viewed the fence between the adjoining properties of Hannah M. Trego and Joshua N. Pierce, situate on South High street, in said borough, find that about one half of the boundary fence, in the neighborhood of 100 feet has recently been erected by Hannah M. Trego of new material; that the remaining portion of the fence, which is likewise about 100 feet in length, is insufficient in their judgment as a yard inclosure; and that they agree that it is the place of Joshua N. Pierce to erect in its stead a suitable fence, upon which they estimate the cost of $35.

The fence viewers thus found insufficient the portion of the fence in controversy, and that it was the duty of the defendant to build a suitable fence. . . .

It was therefore the duty of Mr. Pierce, under the report of the viewers, to repair the fence and put it in proper condition. Mr. Pierce alleges that, upon the report of the viewers, he proceeded to put the fence in proper condition; that he made it a good, substantial fence, and suitable to the purpose for which it was required.

[If the fence, as repaired by the defendant, was a good and substantial fence, that is all the fence law requires. The law does not require that a tight board fence shall be erected. If the party who calls out the fence viewers desires a fence erected by his neighbor upon a portion of the line better or different from that which it occupies, and of a different character, he must erect it at his own expense. He can only require his neighbor, whose duty it is to repair and keep in order part of a line fence, to build or maintain a good, substantial fence. It may be built of rails, boards, slats, boards running lengthwise, or palings. It is immaterial how it is built, so that it is a good and substantial fence between the parties.]

If the defendant, upon the report of the viewers, put the fence in proper condition, and made it a good, substantial fence, then he complied with the law, and the plaintiff who owned the other half of the fence and called out the fence viewers, could have no further remedy. Even though the fence may not have been as fanciful as the plaintiff desired, the defendant would have performed his duty, and the plaintiff would not be at liberty to charge him with the cost of a fence of a different character than that which he erected. . . .

This brings you to the consideration of another point which has been raised in this case. The character of fence referred to by the act of assembly is the boundary fence between owners; that is, where two parties own improved lands adjacent to each other, and the boundary fence between them is a common fence. If this fence in controversy had been put where the old fence was, this question would not have arisen. There would then have been simply the two questions, whether the fence as repaired by Mr. Pierce was sufficient; and, if not, the right of the plaintiff to put it in proper condition with reasonable cost.

It appears, however, that the new fence was not erected by the plaintiff where the old fence stood. The testimony upon this point, which seems to be undisputed, is that at the alley where the fence terminated, the fence was some distance from the old fence. The witnesses do not agree precisely as to the distance, but it seems probable that it was from six inches, half way along the boundary between High street and the alley, to eighteen inches at the alley, further north than where the old fence was. The witnesses speak of the old post holes being on the south side of where the new fence was, and that they were visible there after the new fence was erected, thus showing that the new fence had been erected by the plaintiff, on that part of the lot at least, north of where the old fence was.

If the new fence was erected upon the boundary line between the parties, even although it was not on the site of the old fence, the plaintiff would be entitled to recover. She had a right to erect the fence upon what was the actual or legal line between herself and the defendant. The question is whether she erected it upon the boundary line.

[What is the evidence that the new fence was erected on the boundary between these parties? There is testimony that a surveyor, engaged presumably by the plaintiff in this case, examined the ground and made a mark to which the fence was built; but he was not called as a witness, and there is no evidence as to whether the mark made by him was the line between the parties.]

In the absence of any evidence showing that the new fence was erected on the actual line, you must examine the evidence as to the monuments and boundaries, for the purpose of ascertaining where the line was. It is in testimony that the old fence and its predecessors had remained on that site for a very long series of years. In the absence of anything to the contrary, the law presumes that a fence of long standing between parties marks the line between their properties, and is to be taken as the line whether called for in their deeds or not. If the parties have lived up to and recognized a fence upon the ground as the boundary fence between their respective properties, in the absence of anything showing the contrary, that fence must be taken as the boundary fence between the parties.

If you find, as the testimony seems to indicate, that this old fence had been there for a long series of years, twenty-one years and upwards, each living up to that fence uninterruptedly, each having adverse possession of his or her own side of that fence, then the fence, so far as this case is concerned, would mark the line between these parties; and if the plaintiff built her fence on other ground than on the boundary thus marked, she built it where she had no right to build it.

In a case of this kind the line between the parties is not determined, as that question is settled in another proceeding; but where the fence has been erected on different ground than where the old fence was built, it is necessary to determine whether there is any evidence showing that the party had a right to erect the fence upon different ground. [I see no evidence in this case to warrant the jury in coming to the conclusion that the boundary between these parties was other than that which was marked by the fence that stood there for a long period of time], certainly, according to the testimony, exceeding twenty-one years.

It is contended by the plaintiff, however, that the defendant recognized the ground on which the fence was erected as the line between their properties. Even although a fence may have stood at one place for a long series of years, there is nothing to prevent parties from agreeing that the line is in a different place, or that it shall be established at a different place from that indicated by the monuments on the ground.

It is said that the plaintiff erected the first half of the fence next to High street, that Mr. Pierce was there at least part of the time, when the surveyor was there, and made no objection to it. But is that fact sufficient to hold Mr Pierce to such a new line, or to a line different from that which was upon the ground as the line between the parties? If a surveyor is called, and it is agreed that the line he surveys shall be the line between the parties, then they are bound by his survey. [Is it the fact in this case, that a surveyor came there, at the instance of Miss Trego, and that Mr. Pierce...