dissenting.
The question presented is, whether the proceedings of fence viewers, called by virtue of the provisions of the statute, c. 29, § 5, can be sustained.
It appeai-s from the assignment made by them to each of these parties, of his share of the fence to be built between their adjoining lands, that those lands adjoined for a distance of 204 rods and 10 links, where the fence was to be built. The fence viewers were required by the second section of the statute to make an assignment in equal shares of the fence to be built. They did so, assigning to Hilton 60 rods and 5 links on the westerly end of the line, extending from a road adjoining the westerly end of their lands, easterly to a cedar stake, and another piece on the easterly end of the line a distance of 42 rods and extending from a maple tree designated, to the east end of the line.
They assigned to Longley as his share that portion of the line between the two parts of it assigned to Hilton and extending from the cedar stake to the maple tree, a distance of 102 rods and 5 links.
They directed each party to build and keep in repair a fence on that portion of the line assigned to him, with an exception to be hereafter noticed. They were authorized to require the parties to build or repair the fence, but were not authorized to require them to continue to “ keep in repair the fence,” as they did in this case. This being, however, an attempt to impose an obligation already imposed by law, will not affect the validity of their proceedings.
Doubts have been expressed, whether fence viewers are authorized by the statute to require the parties to build or re-pah the fences, and whether that obligation is not imposed by the law alone. The provisions of the third section are, “ and if they shall determine that the fence is insufficient, they shall signify the same in writing to the delinquent occupant *337of the land and direct him to repair or rebuild the same within such time as they shall judge reasonable not exceeding six days.” If the construction of this clause be, that they are merely to fix the time, when the work should be done, they would have no power to determine, whether an existing fence was such as is required by the first section. It is manifest that such a power was intended to be conferred. If it be urged, that this object will be accomplished by their certifying in writing, that the fence is insufficient, it will be observed, that the statute is equally plain, that they shall direct him to build or repair, as it is, that they should certify it to be insufficient. The record in this case does not show, that they signified in writing, that the fence was insufficient; that fact can only be considered as decided by them by giving effect to their requiring the parties to build or repair. To accomplish the purpose designed the construction must conform to the literal interpretation, that they must at least signify the insufficiency in writing, or “ direct him to repair or rebuild the same,” as well as to fix the time within which it shall be done.
After having assigned to Hilton his first portion of the line of fence, they say, “ he shall also build 7 rods and 8 links of good and sufficient stone wall, eastwardly from said cedar stake to another cedar stake on the south side of the fence spotted and marked with red chalk, to compensate said Longley for the same length of wall already built by him and included in the above mentioned sixty rods.” The cedar stake first named in this clause is the one standing at the easterly end of the first portion of the line of fence assigned to Hilton, and he is required to build upon that portion of it assigned to Longley a stone wall a distance of seven rods and eight links; and to do it as a compensation for so much wall formerly built by Longley on that portion of the line assigned to Hilton. This they were not authorized to do. If they had ascertained, that Longley had built the larger portion of the existing fence, they would have been authorized by a writing signed by them to award to him the value *338of the excess to be paid to him in money by Hilton within six months after demand. This requirement to build that piece of wall is void; and it is insisted, that it may be rejected without affecting the legality of the other proceedings. If, however, it be rejected, there will be no obligation imposed upon either party to build that portion of the fence; for in the assignment to Longley he is required to build the portion assigned to him “ except he shall not build the 7 rods and 8 links assigned to the said Hilton.” If the clause named were rejected, and each party should build the portion of fence required of him by the remaining proceedings, there would remain a space in the line of 7 rods and 8 links, upon which there would exist no fence. It would be necessary to reject the exception also to have the whole line of fence built. This would essentially change the character of the proceedings and make them convey a meaning and speak a language contrary to the intention and language of the fence viewers.
The clause providing that the fences shall be built or repaired within six days, cannot, be construed to require the 7 rods and 8 links to be built by the plaintiff within six days, without making the fence viewers speak a language directly opposed to that which they used.
It becomes necessary therefore not only to reject as inoperative a part of the language used, but to supply a defect occasioned by the rejection of it.
The fence viewers appear to have found, that the plaintiff had already built 7 rods and 8 links of wall, for which he was entitled to compensation, and to have proceeded to make it in a manner unauthorized. If their proceedings are regarded as legal, he may be deprived of the compensation, to' which he was justly entitled. For the statute does not appear to have been framed to authorize such compensation to be made by other fence viewers and as an independent and separate proceeding.
Their whole proceedings should therefore be regarded as illegal.