Binney v. Proprietors of common & undivided Lands

The opinion of the Court was drawn up by

Parker C. J.

The plaintiff brings his action on the statute of 1785.1 He is entitled to recover, unless the defence is sufficient. The defence is, that the plaintiff and all those whose estate he has, have been used time out of mind to keep up at their own expense the fence between their land and that of the defendants.

This is a good defence if made out by evidence, for the statute prescribes the rule where there is no obligation between the parties ; it does not interfere with contracts or rights existing independently of the statute. 2 Dane’s Abr. 660, c. 66, art. 1, § 2. A man may be bound by prescription to maintain a fence for the benefit of another as well as himself; and an action on the case will lie against him if damage ensues, in case it be out of repair. Starr v. Rookesby, 1 Salk. 335. So he shall not have an action of trespass or case for damage done to his lands, if he ought to keep the fence in repair. And the same rule will apply to cases under the statute. If he who is thus bound prescriptively to maintain a fence, builds it and brings his action under the statute, he will fail, because the statute was not made to relieve him from an obligation created perhaps with his title to the land, and proved by prescription.

The evidence was sufficient to prove the prescription. During fifty-six years before the commencement of the suit, the plaintiff and his ancestors had maintained the fence ; and at the beginning of that period it was an old fence, and the ancestor of the plaintiff, then in possession, declared that he and those before him kept up the fence at their own expense. This is literally carrying back the obligation beyond the time of memory. So that the prescriptive duty is completely proved. Why should the present plaintiff be allowed to shift or divide this duty ? The land came to him cunt onere, and it is neither just nor lawful in him to cast it off.1

But it is said the defendants cannot set up this prescription, because the plaintiff is one of the tenants in common, or a member of the corporation. But this cannot make a difference. The rights to the two parcels of land are distinct, and the proprietors are distinct. If there would be a difficulty, the defendants being mere tenants in common with the plaintiff, that difficulty is cured by the incorporation of the defendants. They are now distinct parties. And even if they now were merely tenants in common, the difficulty would be on the plaintiff’s side, from an incapacity to sue himself with others. The authorities cited go to show, that where there is a union of titles and possession, an easement does not exist; but that principle is inapplicable to the present case. Here the land and the titles are distinct, and the defendants may well prescribe for an easement in the plaintiff’s land, or against his right to a contribution in building and repairing fences.

1 See Revised Stat. c. 19, § 4.

1 See Heath v. Ricker, 2 Greenl. 72.