Richardson v. M'Dougall

*By the Court,

The statute on this subject,2R. L. 133, % 17, contains the following provisions: 1. Individuals whose lands join must make and maintain a just proportion of the division fences ; 2. If disputes about the proportions to be made by each arise, they must be settled by the fence viewers of the place in which the lands are situate; 3. If a party omits to make and maintain his part or proportion of the fence, he is made liable to damages, to be appraised by the fence viewers ; 4. If he continues such neglect one month after notice, the party injured thereby may make the fence at the expense of the party neglecting, to be recovered with costs in any court having cognizance thereof; 5. If a party who has made his proportion of such division fence wishes to let his lands lay open, he may do so by giving three months notice; and 6. If he removes his fence without such notice, he is made liable for all damages sustained, to be recovered as aforesaid, with costs. As there had once been a division fence between the lands of the parties, which the defendant had improperly removed, the common pleas held that the plaintiff must sue in form for actual damages, and not for the expense of making a *49new fence. I apprehend that the plaintiff had both remedies. Had actual damages been sustained, the loss of a crop for instance, by reason of the removal of the fence, such damages might have been recovered under the last provision of the act above referred to ; but the defendant here was not relieved from his obligation to make and maintain his part or proportion of the fence; he could be relieved from it only by giving the notice required by the statute. He remained liable, therefore, to make and maintain his part of the fence ; and not having done so after notice, the plaintiff had a right to make it at his expense. This is the only construction of the statute which is reasonable and consistent. The judgment of the common pleas must therefore be reversed, with single costs, and a a venire de novo must issue.