The right of the plaintiff to recover in this action depends on the regularity and validity of the proceedings of the fence-viewers. If they have exceeded the authority and jurisdiction conferred on them by law, or have failed to comply with the provisions of the statute in any essential particular, their award is invalid, and the plaintiff cannot enforce it in an action at law. A special jurisdiction must be exercised within the boundaries prescribed by law, and no intendment can be made in support of the proceedings of a tribunal, which is clothed only with a limited authority.
Passing over several objections urged by the defendants to the doings of the fence-viewers, without expressing any opinion as to their validity, it appears to us that there are two fatal defects which are patent on the face of the proceedings. The first is, that the fence-viewers did not perform the duty or service required of them by the plaintiff in his complaint or application to them. By Gen. Sts. c. 25, §§ 3-6, the fence-viewers are empowered to act only in two classes of cases. One is by *439§ 3, where a party refuses or neglects to repair or rebuild a partition fence which he ought to maintain. The other is by § 5 where a controversy arises about the rights of the respective occupants of adjoining lands or partition fences, and their obligation to maintain the same. The former class of cases arises only when the share or proportion of the fence which each party is bound to maintain and repair is ascertained and settled, and one of them fails to keep his part in sufficient rep ah-. The latter class embraces all those cases where the fence has never been. divided between the adjoining owners, and the share which each ought to maintain and keep in repair is in dispute between them. On reference to the facts proved at the trial, it will appear that the plaintiff made a complaint to the fence-viewers, not that there was a controversy between him and the defendants about their respective rights in the partition fence and their obligation to maintain it, but that the old fence was out of repair. The fence-viewers, instead of acting on this complaint, which was the foundation of their jurisdiction in the premises under § 3, proceeded to adopt measures as if there had been an application to them to assign the share of the fence to each owner, and made an award in like manner as they should have dong if there had been a controversy between the parties as to the share or part of the fence which each ought to rebuild or repair. Not only is it true that no application was made to the fence-viewers to assign to each owner his share of the fence as in a case of controversy concerning it between them, but it is also apparent, from the evidence adduced at the trial, that the partition fence had long previously been divided between the adjoining owners, and the proportion of each had been ascertained and settled. It is, therefore, clear that the fence-viewers had no authority or jurisdiction to proceed and make division of the fence between the parties, as they undertook to do by their award on the ninth day of August 1860, and their doings on that day were clearly erroneous and invalid.
The other defect is equally clear. The order made by the fence-viewers on the nineteenth day of September following, in which they award the sum which the defendants are to pay *440to the plaintiff for repairing and rebuilding their share of the fence, is erroneous in two essential particulars. The first is, that it recites a previous adjudication by them that the partition fence was insufficient and illegal. No such adjudication had ever been made by them. The only previous proceeding by them was that already referred to, on the ninth day of August, in which they had assigned to each owner his share of the fence, under § 5 of the statute. But there had been no proceedings under § 3, in which the fence had been determined to be insufficient, which is clearly a prerequisite to their authority to adjudicate on the value of the repairs made by the plaintiff, and to authorize him to maintain an action to recover double the amount, under § 4 of the statute. The other omission is, that it does not appear that the fence-viewers, at any time before making their order on the nineteenth day of September, adjudged the fence which the plaintiff had rebuilt or repaired to be sufficient. This is also a condition precedent to the right of the plaintiff to recover any sum awarded by the fence-viewers. The statute is explicit on this point. It is only on such an adjudication, after due notice to the parties, that any right of action is given to the party who has caused the fence to be repaired and rebuilt. There is, therefore, no aspect of the pose in which the plaintiff showed any title to recover in this action.
Judgment on the verdict.