Where lands belonging to two persons, have been improved tion fence, and pants shall be desirous to im prove his part in severalty, the other occupant refusing, the fence viewers to divide the same. That where any lands belonging to two persons in severalty shall have been improved in common without a partiwithout a parti- tion fence between them, and one of the occupants shall one of the occu- be desirous to improve his part in severalty, and the other Occupant shall refuse or neglect, on demand, to divide the line where the fence ought to be built, or to build a sufficient fence on his part of the line when divided, it shall be in the power of the party desiring it, to have the same divided and assigned by two or more of the fence viewers of the same town, in the way and manner in this act provided; and the same fence viewers may in writing assign a reasonable time, having regard to the season of the year, for making up the fence; and if the occupant complained of shall not build and erect his part of the fence within the time so assigned, it shall and may be lawful for the other party, after having made up his own part of the fence, to make up the other's part, and recover therefor double the sum it shall cost, with the fees of the fence viewers, in the way and manner in this act before provided. Parties ceasing to improve their lands, or shall lay inclosures in common, not to take away any part of the partition fence. Proviso. And be it further enacted, That when one party shall cease to improve his land, or shall lay his inclosure, before under improvement, in common, he shall not have a right to take away any part of the partition fence that to him belongs, adjoining to the next inclosure that is improved: Provided the party continuing to improve will allow and pay therefor, so much as two or more fence viewers shall in writing determine the reasonable value thereof. And whenever any lands which have laid unimproved and in common, shall be afterwards enclosed or improved by depasturing, the occupant, lessor or freeholder thereof, shall pay for the one half of each partition fence standing upon the divisional line between the same land and the land of the enclosures of any other occupant or proprietor, the value and part thereof to be ascertained in writing, in case they shall not agree between themselves, by two or more of the fence viewers of the same town wherein such line lyes; and in case such occupant, lessor, or proprietor as aforesaid, shall neglect or refuse to pay for a moiety of the partition fences, for the space of thirty days after demand made, (the value having been ascertained as aforesaid) the proprietor of the fence may have and maintain in form aforesaid, an action of the case for such value and the costs of ascertaining the same. fences are on the boundary lines of one or more towns, a fence viewer to be taken from each. And in all cases where the line upon which partition fence Where partition is to be made or divided, is the boundary line of one or more towns, or partly in one town, and partly in another town, a fence viewer shall be taken from each town. And be it further enacted, That when a water fence, or When a water fence running into the water is necessary to be made, the same shall be done in equal halves, unless by the parties otherwise agreed and in case either party shall refuse or neglect to make or maintain the share to such party belonging, similar proceedings shall be had, as in other cases of the like kind respecting fences out of the water, in this act mentioned. fence is necessary, it shall be done in equal halves. Provided, That nothing in this act contained, shall Proviso. extend to house lots, the contents of which do not exceed half an acre; but if the owner or owners of such lots shall improve, his neighbour shall be compellable to make, and maintain one half of the fence between them, whether he improve or not; or to make void any written agreement respecting the making or maintaining partition fences. neglecting their And be it further enacted, That any fence viewer duly Fence viewers chosen and sworn, who on due notice given him, and duty. being requested, by any person interested, to view any fence, complained of as insufficient, shall neglect forthwith to attend the same, shall forfeit and pay the sum of Forfeiture. twenty shillings, to him or them who shall sue for the same, within forty days after such neglect; and each Their fees. fence viewer shall be paid five shillings a day, two shillings and eight pence for half a day, and under that one shilling and six pence, for the time he shall be engaged in the business of his office, by the person employing him. And in case the complainant shall neglect to pay the fence viewers their legal fees within thirty days after the service done, they may severally recover by an action of the case, double the amount of such fees; and each fence viewer may be a witness, for or against his companion in such suit. And Laws heretofore all laws heretofore made respecting partition fences, so far as they relate to lands held or improved in severalty, shall be, and hereby are repealed. February 21, 1786. 1785. Chapter 53. [February Session, ch. 15.] AN ACT CONCERNING GENERAL AND COMMON FIELDS. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority made, repealed. Chap. 53 general fields, and modes of Proprietor of each lot to maintain his part of the whole fence, until, &c. Peace empow Proprietors of of the same, That in any and every town or plantation in this Commonwealth where several allotments of land are enclosed and fenced in one general field, or where they have been so enclosed, fenced and improved, or where all the proprietors of any land shall hereafter see cause to enclose, fence, and improve the same in such manner, such proprietors may, sometime in March annually, and from time to time as they judge proper, meet together to make such rules and adopt such modes of improvement as they shall think just and equitable, and most for the general benefit; and the proprietor or proprietors of each lot respectively, during the time of his or their pasturing, planting, mowing, or otherwise improving his or their part in such general field, shall make and maintain his or their respective part of the whole fence, according to the quantity of acres of land contained in his or their allotment, until the major part of the propriety, at a meeting of such proprietors legally warned for that purpose, shall see cause to alter the form of their Justices of the improvement. And for the better enabling such proprietors to call a meeting for the ends aforesaid, it shall be in the power of any Justice of the Peace for the county where such lands lie, upon application to him made by any two of the proprietors of such general fields, to issue out a warrant for such meeting: which warrant and also the notification of the meeting shall express the business thereof and shall be conducted in the same manner as those for calling a meeting of proprietors of common lands prescribed by "An act relating to lands, wharves and other real estate undivided and lying in common," passed March 10, 1784. And the whole general fence shall be measured, and each proprietor's part set out and apportioned by two or three discreet, indifferent persons appointed and sworn for that purpose, by any Justice of the Peace for the said county, unless the major part of the propriety agree and proportion the same among themselves. And when the proportion of each proprietor in such general fence is adjusted and determined, the same shall be entered upon record by the Clerk of the propriety; and where there is no such Clerk, by the Clerk of the town wherein the land lies, any law, usage or custom to the contrary notwithstanding. ered to issue a warrant for a meeting. The whole genbe measured, & eral fence shall each proprietor's part apportioned. Charges of dividing, &c. how borne. And be it further enacted by the authority aforesaid, That the charge arising by dividing and setting off the several parts of such fence to and among the proprietors 1 of lands enclosed and fenced in one general field, and also the charge of making and maintaining of such fence as cannot justly be set off to any particular proprietor or proprietors, as his or their part, shall be borne by the several proprietors in proportion to their respective interests in such field. powered to of money as Assessors and And be it further enacted by the authority aforesaid, That the proprietors of such general fields respectively Proprietors em shall be, and are hereby, fully authorized and empowered raise such sums in a proprietors meeting for that purpose regularly con- they shall judge vened, by a major vote of the proprietors then present necessary. (the vote to be collected according to the interest of the proprietors) to agree upon and pass one or more votes for the raising and collecting such sum or sums of money from time to time as they shall judge necessary for defraying the charges aforesaid, and for carrying on, or managing, any common affairs relating to such proprietors; and that they be alike empowered to choose three To choose or five Assessors for the assessing and apportioning such Collectors. sum or sums so agreed on and voted upon the proprietors of such fields, according to their several interests therein; and to appoint a Collector or Collectors to gather in and collect the same; which Collector or Collectors shall be, and are hereby, fully empowered to levy and collect the sum or sums so set and apportioned for such proprietors to pay, in the same manner as Constables of towns within this Commonwealth are empowered to levy and collect the public rates or taxes; and to pay in the same to the Proprietors' proprietors or their Clerk, who is hereby empowered to ered to grant grant warrants, for the levying and collecting such assess- levying and ment at such time as shall be by them appointed for the collecting payment thereof; and such Clerk shall be accountable to the proprietors therefor: the person or persons so assessing the said proprietors, and the Collector or Collectors, Assessors and that shall be so appointed for the gathering and collect- under oath. ing the sum or sums so granted and agreed upon by the said proprietors to be assessed and collected as aforesaid, shall be under oath for the true and faithful performance of their services respectively; which oath shall be administered to them as the law provides for swearing town officers. clerk empow warrants for assessments. Collectors to be aggrieved or Provided nevertheless, That any such proprietor who Proprietors apprehends himself aggrieved, or overrated in the making rated, at or apportioning such assessment, shall have liberty to liberty to apply Court of Ses sions. for relief to the apply to the Justices of the General Sessions of the Peace in the respective counties where such fields lie for relief; and in such case the said Justices are hereby fully empowered to grant relief accordingly; and their judgment shall be final. Haywards or field drivers And be it further enacted by the authority aforesaid, That the proprietors aforesaid, or the major part of such may be chosen. of them as shall be present at a meeting legally warned for that purpose, may choose haywards or field drivers, who shall be under oath, and shall have the same powers as if they had been chosen by a town. Proprietors trespassing, shall be proceeded with as if they in the field. And be it further enacted, That if any proprietor in any common or general field shall put, or cause to be put owned no land therein any horse, cattle, sheep, or other creature, over and above the number allowed him, or before the day agreed upon; or keep them longer there than the time set and limited, by a major vote of the proprietors, he shall be deemed a trespasser; and his creatures so put in shall be proceeded with by any of the proprietors as creatures taken damage faisant, to all intents and purposes, as much as if he owned no land within such general field. Trespasses done by reason of the insufficiency of fences adjoining, damages shall be answered according to appraisement. Each proprietor shall once in two years run lines, &c. And be it further enacted by the authority aforesaid, That when and so often as any trespass or trespasses, shall be done in any common or general field by reason of the insufficiency of the fence belonging to any person owning the adjoining land, the party or parties injured shall forthwith procure two sufficient persons of good repute to view and adjudge of the damage done, giving notice of such trespass to the owner or claimer of the horse, cattle, sheep or other creature, that did the same (if he be known and resident in the same town or near thereto) that he may be present, and nominate one of the appraisers of such damage, if he see cause: and the damage shall be answered according to such appraisement. And where damage happens through the insufficiency of the fence, the owner or occupant of the land to which the defective fence belongs, shall be liable to answer and make good all such damage. And be it further enacted, That each proprietor of lands lying unfenced, or in any common field, shall once in two years, on six or more days warning, previously given him by the proprietor or proprietors of the land next adjoining, run the lines, and make or keep up the boundaries between their respective lands by sufficient mear-stones, |