Kennedy v. Owen

| Mass. | Feb 27, 1883

C. Allen, J.

The special remedy provided by statute for enforcing payment of an award of fence-viewers is applicable only to cases where the neglected duty of maintaining the fences was also required by the statutes. The remedy is by an action to recover double the amount of the award. It is therefore not to be extended beyond the spirit of the statute

The language of § 3, that, “if a party refuses or neglects to repair or rebuild a partition fence which he ought to maintain,” the aggrieved party may complain to the fence-viewers, means a partition fence which he ought to maintain, by force of the provisions of this chapter. It was not designed to give this special remedy, with the infliction of double damages, for the omission to perform an ordinary voluntary contract, unless indeed such contract should be entered into and recorded according to the provisions of § 11. That section provides that, where a division of fence has been made, either by fence-viewers or under an agreement in writing between the parties recorded in the town clerk’s office, the several owners, and their heirs and assigns, shall erect and support said fences according to such division; thus imposing upon them the statutory duty of performing their agreement, and, as may reasonably be considered, subjecting them to the statutory remedy in case of non-perform-once.

The case of an agreement not so recorded, or of an obligation arising from the acceptance of deeds, such as it is contended exists in the present case, is not included in the above or any other section of the statutes ; and the statutes were not designed to furnish a new and cumulative remedy for enforcing a right which existed, if at all, under other agreements than those specified. We are to ascertain from a reading of the whole statute what the Legislature intended, and not merely to look at the literal construction of the words of a particular clause, taken by itself alone. Beading § 2 of the statute literally, it would require the plaintiff in the present case to maintain this partition fence with the defendant, in equal shares. But that section is not designed to override any agreement made between the parties. So, in like manner, § 3 is not to receive a construction which shall subject the defendant to an onerous liability for an omission to perform duties not imposed by the statute. Certain duties are declared, and certain remedies provided, in the same chapter. The natural and obvious meaning is, that the statutory remedies are designed for the breach of the statutory duties. See Bishop on Written Laws, § 193, note, and cases cited. Judgment for the defendant affirmed.