The opinion of the court was delivered by
Poland, J.We are all of opinion, that the present case comes within the list of actions excepted from the jurisdiction of a justice of the peace, by the Revised Statutes, chap. 26, sec. 7, upon the ground, that the title of land is concerned.
The plaintiff alleges in his declaration, that he was the owner of a piece of land in Barnet, and that the defendant was the owner of another piece of land adjoining thereto. This allegation we think a material one, and one that the plaintiff, upon a trial of the action upon the plea of the general issue, putting him to the proof of his whole case, would be required to establish by evidence; — indeed, it seems to be an allegation lying at the very foundation of the whole proceeding, by which the suit is attempted to be sustained.
It is urged, however, by the counsel for the plaintiff, that if there ever existed any question between the parties, as to their being adjoining owners, or in relation to the true dividing line between them, if they were such owners, that question cannot now be raised in this suit, — upon the ground, that the decision of the fence viewers, in the premises, is in the nature of a judgment, and concludes the parties in relation to the questions of adjoining ownership and the location of their boundary line. But this doctrine would invest fence viewers with a much higher and more responsible duty, than they have generally been supposed to possess, and much beyond the terms of the statute defining and prescribing their official duty. In cases like the present the fence viewers are only authorized, by statute, to determine the proportion, or part, of the fence, which each adjoining owner shall make, or maintain. If disputes arise between the occupants of adjoining lands, as to their ownership, or their boundary lines, these are to be settled by some other tribunal than the fence viewers ; — they are authorized to divide fences, and the statute declares their judgment in that respect conclusive ; but they have no authority to settle the rights of different claimants to landed property, or to establish disputed boundaries. Neither party, *568therefore, is concluded, by the decision of the fence viewers, from contesting the question of ownership in himself, or his adversary, or the location of their boundaries.
The cases of Whitney v. Bowen, 11 Vt. 250, and Haven v. Needham et al., 20 Vt. 183, seem fully to establish the principle, upon which the present case is decided.
This view of the case renders it unnecessary to examine the questions raised as to the effect of the defendant’s course of pleading to the action, or as to the question of interest in the justice, before whom the suit was brought.
Judgment affirmed.