Friedman v. Jaffe

206 Mass. 454 | Mass. | 1910

Knowlton, C. J.

This is an action, brought under the R. L. c. 33, § 7, to recover the value of a portion of a partition fence erected by the plaintiff and assigned by the fence viewers to the defendants to repair and maintain. It is submitted to the court upon an agreed statement of facts, and it -is a familiar rule of law that, upon a case thus presented, no inferences can be drawn from the facts stated, but the question is whether these facts entitle the plaintiff, as matter of law, to a judgment in his favor. Mayhew v. Durfee, 138 Mass. 584, 585. Schwarz v. Boston, 151 Mass. 196,197. This section of the statutes and the earlier sections in the same chapter which give a plaintiff a right to recover upon an award of fence viewers all relate to proceedings by occupants of land against the occupants of the adjoining land, in reference to a partition fence erected or to be erected on the boundary line between the lands of the respective occupants. Owners of lands, as such, can have none of these remedies. Their rights, if they have any, result only from the fact that they are occupants. This appears from the language of the statute, and was adjudicated in Fay v. Elliott, 154 Mass. 587.

It is nowhere stated as one of the agreed facts that the plaintiff was an occupant of the land that she owned, or that the defendants were occupants of their land. All that is stated affirmatively in reference to their relations to the land is entirely consistent with an occupation of the property by tenants for years or at will, and the exclusion of these parties from occupation. If the agreed facts stopped with what is affirmatively stated as to the relations of the parties to their respective lands, the plaintiff would fail to make out a case. But the agreed statement goes on negatively to show that “ neither one of the parties to this action lived in the houses on the respective premises but the tenants had possession of their respective tenements;" that there were three tenements, one store and bakery in the building owned by the said defendants; that there were seven tenements in the building owned by the said plaintiff; that in each of said respective buildings, said tenements were rented of the plaintiff and the defendants, at a monthly rental by tenants at will.” If the matter were open for inference, it might be argued with much force upon this statement that all the property appears to have been let, and that the lands on each side, along the boundary line, were included with some of the tenements, and were exclusively in the occupation of some of the tenants. Possibly an argument might be made in favor of the opposite inference. But upon this record the subject is not open for inference. The question is whether facts are stated which show as matter of law that the plaintiff and the defendants were in the occupation of the adjoining lands along the boundary line. The record contains no direct statement upon this point. If these lands were not included in the property let to any of the tenants referred to, they may have been in the occupation of other persons who hired the land by itself. The plaintiff has not stated a case which entitles her to a judgment against the defendants.

We do not consider whether the proceedings before the fence viewers, as set out in this record, include everything that would be necessary to entitle the plaintiff to recover, if it appeared that the parties were in occupation of the lands along the line.

Judgment for the defendants.