46 Pa. 252 | Pa. | 1863
The opinion of the court was delivered, November 12th 1863, by
We are entirely satisfied with the rulings of the learned judge below. If it could be demonstrated that the provision of the Road Law of 13th June 1836, which requires him who enjoys a private road through a neighbour’s land, to fence it, was not intended to apply to a private road, laid out like this one under the Act of 6th April 1802, and further, that the reasonable construction of the Act of 1802 would devolve no duty of fencing on the holder of the private road, we would not hesitate to declare it to be his duty, according to the common law of Pennsylvania. Indeed, we apprehend the Act of 1836 was only declaratory of what has generally been the cústom among farmers, that he who causes a private road to be laid through his neighbour’s land, shall do all necessary fencing. Strictly speaking, it becomes a private road only by fencing, for only so is it separated from adjacent fields. If the cost of fencing has been assessed as damages, either under the Act of 1802 or that of 1836, let it be shown, and it would be a defence to an action like this; but it was not shown in this ease, and we cannot presume it, for the legal presumption would be, that fencing was to be done by him for whom the private road exists, and therefore not accounted for as damages.
As to the agreement between the parties, it was not nudum pactum, for the compromise of a doubtful right is a sufficient consideration for a mutual agreement. Nor was it within the
The judgment is affirmed.