es done, or trespasses,

&c.

Lines to be run and boundaries

two years.

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 appointment. 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.

SEC. 18. Be it further enacted, That each proprietor of marked once in 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 mete stones, on pain that every party so neglecting or refusing shall forfeit the sum of two dollars to the party moving or requesting to run the line; the conviction of such neglect or refusal being had before any Justice of the Peace within the same County, who is hereby empowered to hear and determine the case.

Penalty for neglect.

Major part of proprietors may dissolse

and discontinue

such common and general field.

Provision for

common fields

rules and or

SEC. 19. Be it further enacted, That it shall and may be lawful to and for the proprietors who own the major part of the interest or property in any common or general field, at a legal meeting to be warned for that purpose, to dissolve and discontinue such field; six months being allowed to elapse before such discontinuation.

SEC. 20. Provided always, and be it further enacted, That under existing nothing contained in this Act shall prevent or hinder the proprietors of any such common field already fenced, from making and maintaining their fences according to rules and orders formerly agreed on by them at any meeting legally warned.

ders.

Proprietors to yote in their

meetings according to

SEC. 21. Be it further enacted, That at every meeting of such proprietors the votes shall, by the Moderator, be coltheir interest. lected and counted according to the interests of the proprietors present, where such interests are known. And whereas it often happens that horses, cattle, and other creatures are clandestinely turned into general fields, or, being unruly, break into the same in places where the fence is good and sufficient according to law; and when, in such cases, proprietors of general fields, impound horses, cattle or other creatures, the owners replevy them because the fence inclosing the general field is deficient in some distant place from that where the horses, cattle or other creature entered the same, and in consideration of such deficiency judgment is unreasonably recovered against such proprietors:

SEC. 22. Be it therefore further enacted, That whenever

be recovered if

destinely turn.

fence is good

parts of the

cient.

horses, cattle or other creatures, shall be clandestinely turn- Damages may ed into any general field, or, being unruly, break into the cattle are clausame, and shall be taken and impounded by a proprietor ed in, or break thereof and a writ of replevin shall be purchased by the in where the owner of the horses, cattle or other creatures so impounded, although other for the purpose of replevying them, it shall be in the power fence be defi of the Court of Justice, before whom the action shall be brought, to give judgment in favor of the proprietor of the general field, upon his producing satisfactory evidence to the said Court of Justice, that the horses, cattle or other creatures replevied as aforesaid, where either clandestinely turned into the general field, or broke into the same in a part thereof, where the fence was good and sufficient according to law, some other parts of the fence inclosing the general field being deficient, notwithstanding: And whereas it often happens in fencing general fields, for the conveniency of fencing considerable quantities of rocky and barren land not capable of tillage, are taken into such fields, the owners of which may be obliged to make fence, and also pay taxes equally with the other proprietors whenever an assessment is made by the proprietors of such field; which is very unjust :

be excluded in

penses of fene

taxes.

SEC. 23. Be it therefore further enacted, That all lands now Barren and lying in general fields, or that hereafter, may be taken into rocky lands to the same, that are so rocky or barren that the owners thereof estimating exhave never improved them, either by mowing, ploughing, or es, and from feeding, such owners shall not be obliged to make, on account of such lands, any part of the fence in compassing such general fields; nor shall they be taxed for them in any rate or tax, raised by the proprietors of such field, until they shall make improvement thereon. And whereas the minor part of the owners or proprietors of common fields, in some instances, have been and may be desirous of a partition of such field into two or more distinct fields, from a persuasion that their shares or lots might, (if separated and fenced off from the rest,) be improved much more to their advantage, in some manner different from that agreed on by the majority: To the end therefore that such of the owners as are or may be so minded, may not be unreasonably restrained by the rest from having such partition:

more owners in

wish to improve

general field

such cases.

SEC. 24. Be it enacted, That when any three or more of the when three or owners or proprietors of lots in any common or general field, general field lying within one general fence or inclosure, shall make ap-wir los pre plication, in writing, under their hands, to the proprietors of rate from the such field, (at any meeting legally warned for that purpose,) proceedings in to have the lots or shares of the owners or proprietors so applying, or theirs with other lots or shares, (taken together,) to make one entire field, to be separated from the rest by one common fence, and to be improved as a distinct and separate, but common field; in such case, if the proprictors, who have case of Proprithe greater part of the interest among those who are present etors refusing.

at such meeting, shall withhold or refuse their assent to such division or partition, it shall and may be lawful for the JusCourt of Ses tices of the Court of Sessions for the said county, upon applia Committee to cation made to them, to appoint a committee of five freeholdmake partition. ers within the said county, (under oath,) to make the partition

sions to appoint

Proviso for no tice to the pro

prietors.

When major

part of the pro

a

prietors of tract of land,

consisting of

prayed for, if it shall appear to such committee to be expedient, and to assign to each field its part or proportion of the divisional fence in consequence of such partition, to be made, kept up and maintained by the proprietors of the respective common fields; and the return being made under the hands of the major part of such committee, and accepted by the said Court of Sessions, the fields so separated shall be considered as distinct and separate common fields, and the owners or proprietors of each field a distinct and separate propriety, as fully to all intents and purposes whatsoever, as the owners or proprietors of such general field were considered before such partition was made: Provided, That no order for partition be made, or committee appointed, until the rest of the proprietors have been duly notified of such application, and opportunity given them to make their objections thereunto; which notice shall be given by serving the Clerk of such proprietors with a copy of such written application, thirty days at least before such order or appointment be made; and every committee that shall be appointed and employed as aforesaid, shall make return of their doings, in writing, under their hands, unto the said Court, as soon after as may be, for acceptance and confirmation: and the proprietors, whose interest shall be so set off, as well as the remaining proprietors, shall have and enjoy all the powers and privileges which the proprietors of general fields are by law vested with.

SEC. 25. Be it further enacted, That when the major part, in interest, of the proprietors of any tract of land, consisting of several allotments, shall be desirous of inclosing, fencing several allot and improving the same in one general field, they may apinclose the ply to the Circuit Court of Common Pleas in the county eral field-what where such land lies; and when such land lies in different proceedings are counties, then to the Supreme Judicial Court to be holden in

ments, wish to

whole in a gen

to be had.

either; and on such application the said Court shall notify the proprietors concerned in said land to appear at the same Court, at the same or the next term thereof, in such manner and form as the Court shall judge proper; and if on hearing the said proprietors, it shall be deemed for their general benefit by the said Court, they shall decide that such land shall be fenced, inclosed and improved in one general field; and after such tract of land shall be so established as a general field, the first meeting of the proprietors may be called, on application to a Justice of the Peace, in the manner provided by this Act, at any time in the year; and at such first meeting, the proprietors of such field may agree upon the manner of calling and notifying future meetings, as well the annual as

special meetings, of such proprietors; and such proprietors shall be entitled to all the rights and privileges, and subject to all the duties, to which proprietors of general and common fields are. [Approved February 24, 1821.]

00

CHAPTER XLV.

An Act for the support and regulation of Mills.

on their own

raise a suffi.

by the flowing

may complain

SEC. 1. BE it enacted by the Senate and House of Representa- owners of watives, in Legislature assembled, That where any person hath al- ter mills built ready erected, or shall erect any water mill, on his own land, land, &c. may or on the land of any other person, by his consent legally ob- cient head of tained, and to the working of such mill it shall be found ne- water, paying damages, &c. cessary to raise a suitable head of water; and in so doing any lands shall be flowed not belonging to the owner of such mill, it shall be lawful for the owner or occupant of such mill to continue the same head of water to his best advantage, in the manner and on the terms herein after mentioned. SEC. 2. Be it further enacted, That if any person shall sus- Person injured tain damages in his lands by their being flowed as aforesaid, of his lands he may complain to the Circuit Court of Common Pleas of the to the C. c. County wherein the lands so flowed, shall be situated; and Com. Pleas. the said Court shall order the complainant to notify the owner Court to order or occupant of the mill complained of, by serving him with an notice to owner attested copy of such complaint, (together with such order pear at next thereon,) fourteen days at least, before the then next term of said Court, that he may then appear and show cause, if any he have, why a warrant should not issue in the manner, and for the purposes prayed for in such complaint; or such com- or complainant plainant may, fourteen days at least, before the sitting of the before Court, Court, to which he intends to prefer his complaint, cause the cause owner to owner or occupant of such mill to be served with an attested copy of such complaint.-And such service or notification, Mode of notify. certified by the proper officer, shall be deemed sufficient evidence of proper notice.

of mill to ap

.term

may 14 days

be notified.

ing.

stated in the

disputed-trial

SEC. 3. Be it further enacted, That if any owner or occu- If certain facts pant of any mill shall plead to such complaint, and in his plea complaint be shall deny the complainant's title to the lands said to be to be had in damaged by flowing, or shall claim a right to flow such lands Court. without payment of damages, or for an agreed composition; the Court shall order a trial of the issue which may be joined by the parties, by a jury at the bar of said Court; or if the issue be an issue in law, shall determine the same themselves, reserving to each party the liberty of appealing to the Supreme Judicial Court, as in other cases.

trial, Court

SEC. 4. Be it further enacted, That if the owner or occu- On default or pant of a mill, notified as aforesaid, shall not appear, or ap- may issue a pearing shall not show sufficient cause, the Court in which Sheriff to emsaid complaint may be pending as aforesaid, may issue a pannel a Jury.

warrant to

ceeding to se leet and em. pannel the Jary

attendance of

jurors.

Officer may re

in case

Jury to be

sworn.

warrant to the Sheriff of the same county, or either of his Deputies directing him to empannel a jury of twelve good Mode of pro and lawful men; and the officer to whom the warrant shall be directed, shall in writing require of the Selectmen of the three towns nearest to that in which the land injured is situated, (if so many there be within the same county,) to return a number of jurors, (not less than two, nor more than six from any one town,) to serve on the pannel; which jurors shall be drawn from the jury box, notified and returned as in other cases, excepting that the town need not be assembled, and that notice to the persons drawn, one day previous to the time appointed for their attendance shall be sufficient; and penalty for non if any person so returned shall unnecessarily fail to attend, he shall forfeit and pay a sum, not exceeding ten dollars, at the discretion of the Court to whom the verdict shall be returned, to be divided among the jurors who do attend; and if, from turn talesmen, accident or challenge there shall not be a full jury, the officer shall return some suitable person or persons to supply the deficiency; which jury shall be sworn to make a true and faithful appraisement of the yearly damages done to the complainant by so flowing his lands, and how far the same Duty of the ju. may be necessary. And said jury shall try the cause; and ry and effect of their verdict being returned by the officer to the same Court, and there allowed and recorded, shall be a sufficient bar to any action to be brought for any such damages. And if said Facts which jury shall find, and so return in their verdict, that no damage is done to the complainant by flowing his land, as aforesaid, the respondent shall recover his costs. And when the said jury shall so inquire of the said yearly damages, they shall also inquire and make return, in their said verdict, what portion of the year the said lands ought not to be so flowed; and during such portion of the year as the said jury shall certify in their verdict, that the public convenience and the circumVerdict to be stances of the case do not justify such flowing; and the said verdict being accepted by the Court, this Act shall in no manner authorize the said owner or occupant of such mill so to flow the said lands of others. And it shall be in the power of said Court to assess such sum to the officer for his services, as they may judge reasonable.

their verdict.

are to certify in their verdiet.

accepted by the Court.

Parties may

agree on a com

of a jury,

SEC. 5. Be it further enacted, That the parties to said committee instead plaint may agree upon a committee of three persons, to be appointed by the Court in which said complaint may be pending; which committee after giving seasonable notice to the parties, of the time and place of meeting, shall have the and be sworn in the same manner, as the jurors same powers aforesaid. And said committee shall make their report in and same pro the same manner, as the said jury are required to make their verdict; and the said report being returned to the same Court, and there allowed and recorded, shall have the same effect as the verdict aforesaid.

with the same powers, &e.

ceedings to be kad