Fales v. Cole
Massachusetts Supreme Judicial Court
Tort, for causing the death of the plaintiff’s colt through the alleged insufficiency of a division fence which the defendant was bound to keep in repair. Trial in the Superior Court, before Staples, J., who ruled that an assignment of the division fence was invalid, and that, on the evidence, the plaintiff was not entitled to recover, ordered a verdict for the defendant, and reported the case for the determination of this court.
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Tort, for causing the death of the plaintiff’s colt through the alleged insufficiency of a division fence which the defendant was bound to keep in repair. Trial in the Superior Court, before Staples, J., who ruled that an assignment of the division fence was invalid, and that, on the evidence, the plaintiff was not entitled to recover, ordered a verdict for the defendant, and reported the case for the determination of this court. If the ruling was right, that on the evidence the action could not be maintained, the verdict was to stand; otherwise, the verdict was to be set aside, and a new…
1Opinion of the CourtW. Allen, J.
It may be assumed that the assignment of the division fence made in 1864, and acted on ever since, is binding upon the parties to this action, who are the occupants of the lands, and the assigns of the parties to the assignment. Gen.
Sts. c. 25, §§ 5, 10, 11. Pub. Sts. c. 36, §§ 5, 10, 11. There was, then, evidence that a fence, which the defendant was bound by the assignment to maintain between his land and the plaintiff’s, was insufficient, and that the plaintiff’s colt strayed from his land where the fence was insufficient upon the defendant’s land and died there.
By the common law, the…
2Cases cited1 opinion
- Derby v. FlitnerMassachusetts Supreme Judicial Court · 1875
3Cited by3 opinions
- Auxford Brown Ore Co. v. HudsonAlabama Court of Appeals · 1917
- Deane v. GarnissMassachusetts Supreme Judicial Court · 1936
- Vannest v. DealamanSupreme Court of New Jersey · 1913