Miller v. Sanborn

54 Vt. 522 | Vt. | 1881

The opinion of the court was delivered by

Taft, J.

The parties in this case own contiguous lands in Craftsbury. On the 13th day of June, 1879, a majority of the selectmen of that town by regular proceedings adjudged that the defendant’s land was wild and uncultivated so long as the same should remain a common, and occupied only as it had been before that time, and that defendant ought not to be compelled to build any part of the division fence between said lands. This adjudication was binding between the parties ; the selectmen had jurisdiction of the subject-matter and the parties ; the proceedings were regular, and their effect was to relieve the defendant at that time from any liability to make any part of the division fence.'

Section 3180, R. L., provides that after such an adjudication the owner of occupied land may make such a division fence as is necessary to protect himself, and when the other owner occupies the adjoining land, so as to be benefited by such fence, he shall pay to the person so making it, for his equal portion thereof, its value at the time. The plaintiff claims that after the adjudication on the 13th day of June, 1879, the defendant commenced to occupy his land, and cultivated it, and was benefited by the fence, and thereby became liable to pay him the value of one half of it, and that he can maintain an action at law for such value without further proceedings before the selectmen. The statute gives selectmen exclusive jurisdiction of the question whether the owner of unoccupied land adjoining occupied land of another person should make his proportion of the division fence ; and their decision is final between the parties. We think where the selectmen take jurisdiction, and act in the matter, that their adjudication is continuing in its nature, and if they decide that the owner of the uncultivated land ought not to be compelled to make any part of the fence, that he continues relieved of the burden until the selectmen, upon a subsequent examination of the premises, reverse their former judgment. The statute, in our opinion, commits all matters relating to the subject to the selectmen ; it creates them a tribunal, and, as we think, a very suitable one for the settlement of such differences, and when upon-an examination they fail to decide that a party ought not to be compelled to make any part of the fence, his ordinary statute liability attaches. The action of a majority of the board is valid. R. L. sec. 3. The evidence offered to show that the decision of the selectmen was procured by fraud,’ was inadmissible. This question is governed by the well-settled rule that fraud in procuring an adjudication cannot be shown by the parties to it in any collateral proceeding. Freeman on Judg. s. 132.

Judgment affirmed.