By the Court,
Willard, P. J.The first objection to the plaintiff’s right of recovery was that the fence-viewers had not jurisdiction of the subject matter. The revised statutes (1 R. S. 353, § 30 et seq.) provide that when two or more persons shall have lands adjoining, each of them shall make and maintain,a just proportion of the division fence between them, except the owner or owners of either of the adjoining lands shall choose to let such land lie open. In the latter case, if he shall afterwards enclose it, he, shall refund to the. owner of the adjoining land,, a *412just proportion of the value at that time, of any division fence that shall have been made by such adjoining owner, or he shall build his proportion of such division fence. The 32d section provides that the value of the fence, and the proportion thereof to be paid by such person, and the proportion of the division fence to be built by him, in case of his enclosing his land, shall be determined by any two of the fence-viewers of the town. The 34th section provides that each party shall choose one fence-viewer, and if either neglect, after eight days’ notice, to make such choice, the other party may select both. The fence-viewers are required to examine the premises and hear the allegations .of the parties. Their decision must be reduced to writing, must contain a description of the fence, and of the proportion to be maintained by each, and must be forthwith filed in the office of the town clerk of the town. Their decision is made final upon the parties to such dispute and to all holding under them.
The facts proved on the trial brought this case within 'the foregoing provisions. The fence-viewers had jurisdiction of the subject matter. The defendant had the requisite notice, and is as much concluded by the decision, as if he had attended in person, before the fence-viewers, at the time of their examination of the premises. From the certificate of the fence-viewers it appears that the only dispute submitted to them was the proper proportion of the value of the said division fence to be paid for by the defendant. They passed upon that question only. They gave a description of the fence, the value at the time of building the same and its present value, and then decided that $38,25 was the just proportion for the, defendant to pay. The 36th section requires the decision of the fence-viewers to be reduced to writing, and directs that it shall contain a description of the fence, and of the proportion to be maintained by each. "This latter clause need not be inserted, when there has been no submission to the fence-viewers of the proportion of fence each was required to maintain.. It is to be presumed there was no dispute on that point, in this case, as that matter was neither submitted or passed upon. The section does not in terms say that the certificate shall state the proportion of the value of the dir *413vision fence which the defendant is to pay. But as the certificate is required to be in writing, and as this was the only matter in dispute submitted, it was obviously necessary that the amount should be stated. The 86th section is merely directory as to the contents of the certificate. The appraisement contemplated by the 87th section is for a different cause from that specified in the 31st and 32d sections. We think an action can be sustained on this certificate, for the amount stated therein, after the jurisdictional facts had been .established.
The statute makes the party, enclosing land which had formerly lain open, liable to pay to the party who had built the whole division fence a just, proportion of the value at that time, of such fence — that is, of the value at the time of the enclosure. This enclosure took place in May, 1847. The certificate of the fence-viewers is dated in .August, 1848, and it finds the proportion of said value to be paid by the defendant to the plaintiff to be $38,25, “ that being, in our judgment the present value of said fence, to wit, 75 cents a rod.” It is objected that the fence-viewers have not pursued the language of the statute, but instead of finding the value at the time of the enclosure, they have found the value at the time of the giving the certificate, more than a year subsequently. If this were so, it would be an error in favor of the defendant, rather than against him. But the fair-meaning of the certificate, when taken altogether, is that by present value was intended the value at the time of the enclosure. The fence-viewers were speaking of that time.
The practice of submitting controversies between the owners of adjoining land, to the decision of fence-viewers, originated in the colonial government. The first law on the subject was passed in 1750. (1 Van Sch. L. of N. Y. 290, § 3.) It has been retained, with some modifications, in every subsequent revision of the laws. (2 Greenl. 172, § 18. 1 K. & R. 332, § 14. 2 R. L. of 1813, 133, § 17.) But none of the statutes provided for the present case, until the revision in 1830. The 31st section as adopted, was not in the report of the revisers, but was introduced with some other changes, by the legislature. It has not hitherto *414been the subject of any judicial decision, which has been brought to our notice.
[Essex General Term, July 7, 1851.Willard, Hand and Cady, Justices.]
There is a strong equity, that he who has let his land lie open, until the adjoining owner .has constructed the entire division fence, should be compelled, when he encloses his lot, and receives the benefit of the fence erected by his neighbor, to make satisfaction for the just proportion which he ought to have built. The common law did not provide for this case, and none of the statutes, prior to 1830, contained any adequate provisions on the subject. It was a very suitable matter to submit to the decision of the fence-viewers of the town, and the statute which makes their determination final upon the parties, is dictated by principles of sound and enlightened policy.
There was in truth no evidence of an accord and satisfaction, which would have authorized the jury to find for the defendant. Their verdict was right upon the merits. The county court did not err in affirming the judgment of the justice.
Judgment of county court affirmed.