This action is brought to recover the value of one moiety of a partition fence erected by the plaintiff, and the costs of ascertaining the same by fence viewers. The claim is made under 4th, 7th, and 12th sections of the 19th chapter of the revised statutes. The facts disclosed by the bill of exceptions, and the papers referred to, are as follows. In 1838, the plaintiff purchased a lot of land in Nantucket, and subsequently erected the fence in question. At the time the fence was erected, the adjoining land, owned by the defendants, was unoccupied. So long as the land of the defendants remained in that condition, the whole burden of making and maintaining the division fence rested on the plaintiff; but whenever the defendants enclosed their land, or used it for the purpose of depasturing, it became their duty to maintain one half of the partition fence ; and, inasmuch as the whole fence had been erected by the plaintiff, and the defendants, by their occupancy, availed themselves of the .abor and expense of the plaintiff in erecting it, the legislature have thought it to be reasonable that a just compensation should be made therefor by the defendants. The statute does not provide that the liability of the defendants should arise after the land had been enclosed, or occupied, any limited period of time ; but whenever the defendants enclosed their land, or depastured it, their liability arose, and the right of the plaintiff to an indemnity became absolute. It does not appear how long, previously to the 29th day of April 1845, the defendants had occupied their land ; the notice of the fence viewers, of that date, states merely that it is “ the fence voluntarily built by the plaintiff, and which stands on the line between his land, in Nantucket, and the land heretofore unimproved, but now occupied by you, the said corporation, for the purpose of depasturing.” Nor is it material; for, assuming the fact to be as is here stated, the right of the plaintiff to compensation, under the statute, is undeniable. The defendants make no objection to the regularity of the proceedings by the fence viewers, in matter of form; but they contend that before the proceedings *15were completed, certain changes had taken place, which rendered them nugatory. The proceedings of the fence viewers were completed on the 24th of May, and on the 13th of May, upon the application of George Easton, one of the proprietors, there was set off to him, in severalty, the lot adjoining to that of the plaintiff. On the 15th of May, George Easton conveyed the land, thus set off to him, to his son, Oliver W. Easton, who, on the next day, gave notice of the purchase to the plaintiff, and that he did not intend to occupy or improve the land at present; that he should not enclose it, but would avail himself of the statute, &c. These transactions, which took place after proceedings had been commenced pursuant to the statute, cannot change the rights of the parties. The plaintiff had, at that time, a legal claim to contribution, and, although the defendants, or their assignees, might avoid the burden of maintaining their moiety of the fence, in the manner pointed out by the statute, yet a bare notice of an intention not to occupy would not have that effect. The Rev. Sts. c. 19, § 15, provide that, “ if any person shall lay his lands common, and determine not to improve any part of the same adjoining the fence that may have been divided as aforesaid, and shall give six months’ notice of his determination to all the adjoining occupants of the land, he shall not be required to keep up or support said fence during the time that his lands shall so lie common and unimproved.” In this section, the determination not to improve is coupled with the act of laying the land in common; and both must concur, together with six months’ notice, in order to exonerate the proprietor. It does not appear, in the present case, that O. W. Easton ceased to occupy his land, and it does appear that the six months’ notice was not given; we think it to be very clear that this defence cannot be maintained. Nor is there any force in the second objection. The St. 1847, c. 102, was passed after the present action was commenced, and nearly two years after the proceedings before the fence viewers were instituted. That act relieves a certain description of occupants on the island of Nantucket *16from the burden of maintaining partition fences; it was prospective in its operation, and it neither ought to have, nor was it designed to have, any effect upon the claim of the plaintiff.

The defendants also objected, that J. M. Bunker, Esq., named in the record of the fence viewers, was not authorized to appear for them, as counsel, in these proceedings. If the defendants were properly notified by the fence viewers, it is difficult to perceive how the authority of Mr. Bunker becomes material; the evidence upon this point, however, has been reported, and it appears to us that it was sufficient to warrant the jury in finding that Mr. Bunker was authorized to appear as counsel for the defendants; and, indeed, unless the veracity of the witness was impeached, we do not see how the jury could have arrived at any other conclusion. The exceptions are overruled, and judgment is to be entered for the plaintiff.