11 N.H. 241 | Superior Court of New Hampshire | 1840
In this case it appears that there was an agreed partition of fence, made and executed by the parties, and that the cattle taken damage feazant escaped from the plaintiff’s enclosure through the defendant's portion of the fence on to the defendant’s land; but it is contended that this partition, which was by parol merely, had been previously revoked, and that the plaintiff, under such circumstances, was bound to retain his cattle upon his own land; and the case turns upon the point whether the evidence offered to show a revocation is sufficient for that purpose or not.
The statute provides, “ that where no division of partition fence hath been made, and the persons whose duty it is to make and maintain such fence, cannot agree on a division of the same, the fence-viewers of the town within -which such lands are situated may, on application to them, and due notice to the parties, proceed to make such partition.” 1 Laws N. H. 194.
The statute then recognizes the right of the parties to agree upon a division of fence ; and it is only where they cannot agree, or have not agreed, that the fence-viewers have jurisdiction. We are of opinion, however, that the agreement contemplated in the statute is an agreement in writing, and that where no such agreement exists in writing, except perhaps in cases of prescription, the fence-viewers have jurisdiction, on application of either of the land holders.
A mere parol agreement by the owners will not preclude the jurisdiction of the fence-viewers. Where it has been executed, however, by parties, it will remain obligatory upon
The evidence offered, then, of a revocation, is insufficient, and the agreed partition remains in force. The cattle broke through the defendant’s portion of the fence, which was out of repair through his neglect. The replevin of the cattle was, therefore, rightfully made, the cattle having escaped through no fault of the plaintiff. There must, therefore, be
Judgment on the verdict for the -plaintiff.
