179 Mass. 315 | Mass. | 1901
With some hesitation we have come to the conclusion that the ruling was right. We do not agree with the defendant’s argument that the word “ fence ’’ means a division fence. But we do think that the statute must be construed in the light of the kind and the extent of the restriction which the Legislature intended to impose, and, so construed, we are of
In Rideout v. Knox, 148 Mass. 368, the purpose and extent of the act are considered at length. It was there shown that it was not intended to curtail the use of land generally, nor to curtail the owner’s rights to those uses of the land, which are the immediate rights of ownership, but that it was limited to curtailing a more or less necessary incident of ownership, namely, erecting a fence for the sake of annoying a neighbor; and in this connection it was said: “ It is at least doubtful whether the act applies to fences not substantially adjoining the injured party’s land.” In Smith v. Morse, 148 Mass. 407, it was held that the act did not create an easement in the plaintiff. And, finally, it was held in Spaulding v. Smith, 162 Mass. 543, that the language of the act is not to be taken technically, and that a fence on the other side of a public highway was not within the statute, though the plaintiff and the defendant were owners of adjoining lands by owning to the centre of the way. The fence in Rideout v. Knox, 148 Mass. 368, jvas erected “ against the fence which stood on the line dividing the estates of the parties.” In Smith v. Morse, 148 Mass. 407, it was alleged in the declaration that the fence was “ on or near the line between the plaintiff’s said premises and the said premises owned or occupied by the defendant.” In Rice v. Moorehouse, 150 Mass. 482, it is stated in the bill of exceptions that the fence was “ on or near the line between her [the defendant’s] land and land of plaintiff.” In Lord v. Langdon, 91 Maine, 221, relied on by the plaintiff, the fence complained of was “about two feet from the division fence separating the two lots.”
Construing the statute in the light of the extent and purpose which the Legislature had in mind, we are of opinion that it does not apply to a fence which is not on, or near, the division line.
Exceptions overruled.
