This was an action to recover of the defendant double the value of a partition fence erected by the plaintiff, on the ground that the defendant had refused and neglected to erect that part of the fence which had been assigned to him to make, by the fence viewers, pursuant to Rev. Sts. c. 19, § 6. The case comes before the court by exceptions.

1. The first exception is, that the judge admitted the certificate of the fence viewers, certifying their opinion of the sufficiency of the fence built by the plaintiff, and their appraisement of the value, without giving notice to the defendant of their meeting for the purpose of adjudicating on the sufficiency of the fence.

The statute does not, in terms, direct notice to the parties ; but it was held in Scott v. Dickinson, 14 Pick. 276, as the reasonable construction of the similar St. of 1785, c. 52, that notice must be given.

It appears by the certificate of the fence viewers, that they did give notice to the parties of the time and place of their meeting, “to review the said fence,” and that, having examined the same, and found it to be built according to law, they then proceeded to appraise the same. This would seem of itself to be sufficient evidence of notice.

But it appears by the exceptions, that some other evidence *501was offered, to show that the defendant had notice of the intended meeting of the fence viewers to appraise the value of the fence, but declined to appear, for the reason that he was not obliged to build any part of the fence on the line between him and the plaintiff; but no notice to the defendant was offered to be proved, of the intention of the fence viewers, then and there to adjudicate upon the legality and sufficiency of the fence. The court instructed the jury, that notice of the fence viewers’ meeting, for the purpose oi appraising the fence only, was sufficient, and all that the law required.

The exception and the argument for the defendant seem to assume that the law requires two distinct meetings of the fence viewers, after the fence has been repaired; one, to determine on its sufficiency, and the other, to appraise its value, or, at least, if there be one meeting only, that there must be a separate and distinct notice of the two purposes. We do not so understand the law. The Rev. Sts. c. 19, § 6, do not prescribe, in terms, how the double value therein provided for shall be ascertained, otherwise than by saying, in general terms, that it shall be ascertained and recovered, in the manner provided in that chapter. This refers to <§, 4, which provides, that “ when any deficient fence, built up or repaired by any complainant, as provided in the preceding section,” (i. e. after the other party has neglected to do it, according to an order of the fence viewers,) “ shall be adjudged sufficient, by two or more of the fence viewers, and the value thereof, together with their fees, ascertained by a certificate under their hands, the complainant shall have a right to demand,” <fcc. The judging of the sufficiency of the fence, and ascertaining the value, are all one transaction, to be done at one time; and one notice, indicating the purpose, so that it may be reasonably intelligible, is sufficient.

% The next exception is, that the plaintiff demanded the double damages, and also the fees of the fence viewers; that their fees were not legally taxed, because pot taxed by the day as required by Rev. Sts. c. 19, § 18; and that therefore *502the demand was for too much, and consequently illegal and void. The plaintiff, at the trial, relinquished all claim for their fees.

It appears by the case, that the plaintiff exhibited to the defendant the fence viewers’ certificate of appraisement, soon after it was made, and more than thirty days before the commencement of thé suit, and then made a demand of double the amount of the appraised value of the fence, (Rev. Sts. 19, § 4,) and also the fees of the fence viewers. It appears, by reference to the certificate, that the value of the fence was separately appraised at $20-67; and they also certify their own fees, one half day each, $1; notifying &c. $2; the whole, $3. The statute prescribes that the fence viewers shall be paid at the rate of $1 a day. But, supposing the charge of $2, for surveying, notifying, &c. was illegal, of which we give no opinion, we are of opinion that the demand for each item was in its nature several, and that the demand for the $2 would not render the demand for the other sums void. The defendant might have paid the damage, and refused to pay the costs, if by law he was not.bound to pay the latter. We think the demand was sufficient and the direction right.

3. The third exception is, that the fence in question' was a water fence, specially provided for by the 9th or 14th section of the statute. But we think otherwise. Sect. 9 provides .for a case where . the boundary line between two proprietors, is a river, brook, pond or creek, which is not of itself a sufficient fence, and where a fence cannot be made in such waters, and on the true boundary line, without unreasonable expense; in which case, fence viewers are authorized to direct a suitable fence, not on the true line. Such is not the present case. The boundary of the parties is not a river, creek, brook or pond. It is land, over both parts of which water is spread, a part of the year, and during a part of the year it is free from water, and is improved.

Sect. 14 provides that “ when a water fence, or fence running into the water, is necessary to be made, the same shall be *503done in equal shares.” The case contemplated in this section is well defined in the quaint language of the province law, in a preamble to the original of this provision: “ Whereas it may happen that the bound or line, betwixt man and man, may butt or end on, or run into, the sea, or some river or pond, whereby the water fence may be needful.” Anc. Chart. 525. The purpose is sufficiently expressed in this 14th section ; a “fence running into the water.” It contemplates a fence terminating at deep-water, where it must be carried to siv.h a distance into the water, that the depth of water itself becomes a sufficient fence. Such a fence it may be more expensive and difficult to make and maintain ; and therefore the legislature have thought it expedient to make a special provision for its being done in equal shares. But this cannot apply to land occasionally covered with water, but capable, a part of the year, of being mowed, pastured, and used as upland.

Exceptions overruled.