131 Mass. 431 | Mass. | 1881
We have not found it necessary to consider the questions raised by the report as to the legality and regularity
The plaintiff’s right to recover depends wholly on the statute, and, as he fails to show a compliance with its provisions in one essential particular, he cannot maintain his action. We are not called upon to consider what might be the effect of an unintentional and immaterial deviation from the true division line, as in this case the whole line adopted by the plaintiff was different from the true line except at the point where the two lines crossed.
The plaintiff relies upon the St. of 1863, c. 190; but this statute has no application to the case. It provides that, when a division line is in dispute or unknown, the fence-viewers shall have the power to designate a line on which the fence shall be built, which line shall for the purpose of maintaining a fence be deemed the division line until it shall be determined by judicial proceedings or otherwise that the true line is in another place. But the plaintiff in his complaint to the fence-viewers did not state a case under this statute. He did not call upon them to designate a line on which the fence might be built because the true line was in dispute or unknown, and the fence-viewers did
The ground now taken by the plaintiff that this point was not open to the defendant under the pleadings, was not taken in the Superior Court. On the contrary, both parties asked for rulings as to the effect of the deviation from the true line without reference to the pleadings. Judgment for the defendant.