Id.; how maintained in other cases. [1 R. S., 353, § 30 (1 Edm., 326) as supposed to be amended by L. 1860, ch. 267; L. 1866, ch. 540; L. 1871, ch. 635, and L. 1872, ch. 377 (9 Edm., 106 and 362). The act of 1872 added the last sentence. See 22 B., 579; 18 B., 400; 11 B., 412; 9 How. Pr., 455; 17 W., 320; 35 B., 16; 41 B., 159; 44 B., 136; 59 N. Y., 28; 67 N. Y.. 427; 2 Sandf., 301. While the foregoing and following sections do not relate to justices of the peace, still as justices frequently refer to them, they are inserted for their convenience. See preceding note.] § 31. Where two or more persons shall have lands adjoining, and not within the provisions of section thirty, as hereby amended, each When ad- of them shall make and maintain a just and equal proportion of the joining owner to refund. Id.: on transfer of title. Value of proportion; how determined. Disputes; how settled. division fence between them, except the owner or owners of either of the adjoining lands shall choose to let such lands lie open. If he shall afterwards inclose it, he shall refund to the owner of the adjoining land a just proportion of the value, at that time, of any division fence that shall have been made and maintained by such adjoining owner, or he shall build his proportion of such division fence. 32. Where a person shall have cleared or improved lands lying open, he shall refund to the owner of adjoining land which is also cleared or improved, a just proportion of the value, at the time this act shall take effect, of any division fence that shall have been made and maintained by such adjoining owner between such cleared or improved lands, or he shall build his proportion of such division fence. Whenever a subdivision or new apportionment of any division fence shall become necessary by reason of the transfer of the title of either of the adjoining owners to the whole or any portion of the adjoining lands by conveyance, devise, or descent, such subdivision or new apportionment shall thereupon be made by the adjoining owners affected thereby; and either adjoining owner shall refund to the other a just proportion of the value, at the time of such transfer of title, of any division fence that shall theretofore have been made and maintained by such other adjoining owner, or the person from whom he derived his title, or he shall build his proportion of such division fence. The value of any fence, and the proportion thereof to be paid by any person, and the proportion to be built by him, shall be determined by any two of the fence viewers of the town. § 33. If dispute arises between the owners of adjoining lands, concerning the proportion or particular part of fence to be maintained or made by either of them, such dispute shall be settled by any two of the fence viewers of the town. [9 J. R., 136, 4 J. R., 414; 25 N. Y., 236; 35 B., 16.] 34. When any of the above mentioned matters shall be sub- Id. mitted to fence viewers, each party shall choose one; and if either neglect, after eight days' notice, to make such choice, the other party may select both. ings of viewers. § 35. The fence viewers shall examine the premises, and hear the Proceedallegations of the parties. In case of their disagreement, they shall fence select another fence viewer to act with them, and the decision of any two shall be final upon the parties to such dispute, and upon all parties holding under them. cision thereon. 36. The decision of the fence viewers shall be reduced to writ- Id.; deing, shall contain a description of the fence, and of the proportion to be maintained by each, and shall be forthwith filed in the office of the town clerk. make or fence. § 37. If any person who is liable to contribute to the erection or Neglect te reparation of a division fence, shall neglect or refuse to make and repair maintain his proportion of such fence, or shall permit the same to be out of repair, he shall be liable to pay to the party injured, all such damages as shall accrue thereby, to be ascertained and appraised by any two fence viewers of the town, and to be recovered, with costs of suit. The appraisement shall be reduced to writing, and signed by the fence viewers making it. [18 W., 213; 11 W., 46; 3 H., 38.] § 38. If such neglect or refusal shall be continued for the period Ia. of one month, after request in writing to make or repair such fence, the party injured may make or repair the same, at the expense of the party so neglecting or refusing, to be recovered from him, with costs of suit. [44 B., 16.] fences to may be removed, and lands im lie open. § 39. If any person who shall have made his proportion of a division How fence shall be disposed to remove his fence and suffer his lands lie open, he may do so, provided such lands are not cleared or proved, at any time between the first day of November in any one year and the first day of April following, but at no other time, giving ten days' notice to the owner or occupant of the adjoining land of his intention to apply to the fence viewers of the town for permission to remove his fence; and if, at the time specified in such notice, Id. Fence de stroyed by Id. Powers of fence viewers. Penalty for neg keep a sufficient any two of such fence viewers, to be selected as aforesaid, shall determine that such fence may, with propriety, be removed, he may remove the same. [3 W., 142; 11 Wend., 46.] 40. If any such fence shall be removed without such notice and permission, the party removing the same shall pay to the party injured, all such damages as he may sustain thereby, to be recovered, with costs of suit. § 41. Whenever a division fence shall be injured or destroyed by floods, or other casualty, the person bound to make and repair such fence, or any part thereof, shall make or repair the same, or his just proportion thereof, within ten days after he shall be thereunto required by any person interested therein. Such requisition shall be in writing, and signed by the party making it. § 42. If such person shall refuse or neglect to make or repair his proportion of such fence, for the space of ten days after such request, the party injured may make or repair the same, at the expense of the party so refusing or neglecting, to be recovered from him, with costs of suit. § 43. Witnesses may be examined by the fence viewers on all questions submitted to them; and either of such fence viewers shall have power to issue subpoenas for, and to administer oaths to said witnesses; and each fence viewer and witness thus employed shall be entitled to one dollar and fifty cents per diem; such fence viewers, or a majority of them, shall determine what proportion thereof shall be paid by each of the parties interested in such division fence, and reduce their determination to writing, and subscribe the same, and file it in the office of the town clerk where such fence viewers shall reside; the party refusing or neglecting to pay such fence viewers, or either of them, shall be liable to be sued for the same, with costs of suit. § 44. Whenever the electors of any town shall have made any lecting to rule or regulation, prescribing what shall be deemed a sufficient fence in such town, any person who shall thereafter neglect to keep a fence according to such rule or regulation, shall be precluded from recovering compensation in any manner, for damages done by any fence. beast lawfully going at large on the highways, that may enter on any lands of such person, not fenced in conformity to the said rule or regulation, or for entering through any defective fence. [7 B., 306; 4 B., 56; 5 D., 255.] presumed. § 45. When the sufficiency of a fence shall come in question in Sufficiency any suit, it shall be presumed to have been sufficient, until the contrary be established. [Ia., SS 31-45, as amended by the acts cited in the previous note, and L. 1850, ch. 319. Section 44 is doubtless superseded by §§ 3082-3084, pages 99 and 100, ante, as a fence not now required along a highway, Jones v. Sheldon, 50 N. Y., 479. But see 25 Barb., 11. Section 37 of the R. S. was doubtless intended to be amended by the following act, L. 1838, ch. 261 (3 Edm., 300). The fence viewers are the town assessors and commissioners of highways. 1 R. S., 340, § 4 (1 Edm., 313).] CHAP. 261. AN ACT to amend article fourth, chapter eleventh, title fourth and part first of the Revised Statutes relative to division fences. PASSED April 18, 1838. The People of the State of New-York, represented in Senate and Assembly, do enact as follows: SECTION 1. If any person, liable to contribute to the erection or reparation of a division fence, shall neglect or refuse to make and maintain his proportion of such fence, or shall permit the same to be out of repair, he shall not be allowed to have and maintain any action for damages incurred, but shall be liable to pay to the party injured all such damages as shall accrue to his lands, and the crops, fruit trees and shrubbery thereon, and fixtures connected with the said land, to be ascertained and appraised by any two fence viewers of the town, and to be recovered with costs of suit; which appraisement shall be reduced to writing, and signed by the fence viewers making the same, but shall be only prima facie evidence of the amount of such damages. [See preceding note; 18 N. Y., 210; 5 D., 260; 4 D., 101; 8 H., 40.] Damages for omit ting to build. 429 Complaints, how made. Proceedings. Id Id. Penalties to be set off. Proceedings upon the non-paymen of highway tax. § 41. It shall be the duty of every overseer of highways, within six days after any person so assessed and notified, shall be guilty of any refusal or neglect for which a penalty or fine is prescribed in this title, unless a satisfactory excuse shall be rendered to him for such refusal or neglect, to make complaint on oath to one of the justices of the peace of the town. [5 D., 102; 1 J. R., 515; 10 J. R., 470.] § 42. The justice, to whom such complaint shall be made, shall forthwith issue a summons directed to any constable of the town, requiring him to summon such delinquent to appear forthwith before such justice, at some place to be specified in the summons, to show cause why he should not be fined according to law for such refusal or neglect; which summons shall be served personally, or by leaving a copy at his personal abode. [3 J. R., 474; 9 J. R., 229.] 843. If, upon the return of such summons, no sufficient cause shall be shown to the contrary, the justice shall impose such fine as is provided in this title for the offence complained of, and shall forthwith issue a warrant under his hand and seal, directed to any constable of the town where such delinquent shall reside, commanding him to levy such fine, with the costs of the proceedings, of the goods and chattels of such delinquent. $ 44. The constable, to whom such warrant shall be directed, shall forthwith collect the moneys therein mentioned. He shall pay the fine when collected, to the justice who issued the warrant, who is hereby required to pay the same to the overseer who entered the complaint, to be by him expended in improving the roads and bridges in the district of which he is overseer. § 45. Every penalty collected for a refusal or neglect to appear and work on the highways shall be set off against the assessment upon which it was founded, estimating all moneys collected as a satisfaction at the rate of twelve and a half cents an hour for each day. [The preceding sections 41-45 are 1 R. S., 510, §§ 41-45 (1 Edm., 469), as § 45 is amended by L. 1880, ch. 308.] |