FENCES, FENCE VIEWERS, POUNDS AND FIELD DRIVERS

M.G.L. pt. Part I, tit. Title VII, ch. c. 49

in effect

M.G.L. c. 49, § 1 Fence viewers; appointment; tenure

c. 49, § 1. Fence viewers; appointment; tenure Section 1. The mayor of each city, subject to confirmation by the city council, and the selectmen of each town shall annually appoint two or more fence viewers, to hold office for one year and until their successors are qualified.

M.G.L. c. 49, § 2 Definition of fences

c. 49, § 2. Definition of fences Section 2. Fences four feet high, in good repair, constructed of rails, timber, boards, iron or stone, and brooks, rivers, ponds, creeks, ditches and hedges, or other things which the fence viewers consider equivalent thereto, shall be deemed legal and sufficient fences.

M.G.L. c. 49, § 3 Maintenance of partition fences

c. 49, § 3. Maintenance of partition fences Section 3. The occupants of adjoining lands enclosed with fences shall, so long as both of them improve the same, maintain partition fences in equal shares between their enclosures, unless they otherwise agree.

M.G.L. c. 49, § 4 Failure to maintain partition fence; proceedings by adjoining occupant

c. 49, § 4. Failure to maintain partition fence; proceedings by adjoining occupant Section 4. If a person refuses or neglects to repair or rebuild the part of a partition fence which under this chapter he is required to maintain, any person aggrieved may complain to the fence viewers, who, after notice to each party, shall view the fence; and if they determine that it is insufficient and that a partition fence is required, they shall so state in writing to the delinquent occupant, and direct him to repair or rebuild his part within such time as the fence viewers may determine; and if the fence is not so repaired or rebuilt, the complainant, after having repaired or rebuilt his part of said fence, may repair or rebuild the part of such occupant.

M.G.L. c. 49, § 5 Remedy for repair of deficient fence

c. 49, § 5. Remedy for repair of deficient fence Section 5. If a deficient fence which has been built up or repaired by a complainant is, after due notice to each party, adjudged sufficient by the fence viewers, and the value of the part of the delinquent occupant, together with the fees of the fence viewers, has been ascertained by a certificate under their hands, the complainant may demand either of the owner or of the occupant of the land where the fence was deficient double the amount so ascertained; and upon the neglect or refusal to pay the same for one month after demand, he may recover the same, with interest at one per cent a month, in an action of contract.

M.G.L. c. 49, § 6 Disputes regarding repairs; arbitration

c. 49, § 6. Disputes regarding repairs; arbitration Section 6. When a dispute arises concerning the part of a partition fence which under this chapter each party is required to build or maintain, either party may apply to the fence viewers, who, after notice to each party and a hearing, may in writing assign to each his share thereof, and may direct the time within which each party shall erect or repair his share; which assignment, being recorded in the office of the city or town clerk upon the payment by the party so applying of the fee provided by clause (33) of section thirty-four of chapter two hundred and sixty-two, shall be binding upon the parties and upon the succeeding occupants of the land.

M.G.L. c. 49, § 7 Remedy for repair of deficient fence assigned by fence viewers

c. 49, § 7. Remedy for repair of deficient fence assigned by fence viewers Section 7. If a person refuses or neglects to erect and maintain the part of a fence assigned to him by the fence viewers, it may be erected and maintained by the adjoining occupant, and if adjudged sufficient by the fence viewers, he shall be entitled to double the value thereof, which shall be ascertained and recovered in the manner aforesaid.

M.G.L. c. 49, § 8 Remedy for repairing more than just share of partition fence

c. 49, § 8. Remedy for repairing more than just share of partition fence Section 8. If a partition fence is required under this chapter between the lands of adjoining occupants, and either of them has, before complaint made, voluntarily erected the whole fence or more than his just share thereof, or has otherwise become proprietor thereof, the fence viewers may order the other occupant to pay the value of so much thereof as may be assigned to him to repair or maintain, to be ascertained and recovered as provided in this chapter.

M.G.L. c. 49, § 9 Construction and maintenance of fences between lands divided by a river

c. 49, § 9. Construction and maintenance of fences between lands divided by a river Section 9. If lands of different persons, required under this chapter to be fenced, are divided by a river, brook, pond or creek, and one of the occupants refuses or neglects to join in making a partition fence, or they disagree respecting the same, the fence viewers shall, upon application, forthwith view such river, brook, pond or creek; and if they determine that it is not sufficient as a fence, that it is impracticable to fence on the true boundary line without unreasonable expense, and that a partition fence is required, they shall, after notice to the parties, determine how or on which side the fence shall be set up and maintained, or whether partly on the one side and partly on the other, as to them may appear just, and shall reduce their determination to writing; and if either party refuses or neglects to make and maintain his part of the fence according to such determination, it may be made and maintained as before provided, and the delinquent party shall be subject to the same costs and charges, and they shall be recovered in like manner.

M.G.L. c. 49, § 10 Fences on lands owned in severalty and occupied in common; construction

c. 49, § 10. Fences on lands owned in severalty and occupied in common; construction Section 10. If land belonging to two persons in severalty has been occupied in common without a partition fence, and one of the occupants desires to occupy his part in severalty, and both occupants are in possession of beasts which would be restrained by the erection of a fence dividing the parts of each occupant, and the other occupant refuses or neglects 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, the party desiring it may have the same divided and assigned by the fence viewers in the manner provided in this chapter; and the fence viewers may in writing assign a reasonable time, having regard to the season, for making the fence; and if the occupant complained of does not make his part of the fence within the time so assigned, the other party may, after having made up his part of the fence, make up the part of such occupant, and recover therefor double the sum total of the expense thereof and fees, as provided in section five.

M.G.L. c. 49, § 11 Maintenance of fences surrounding land laying common

c. 49, § 11. Maintenance of fences surrounding land laying common Section 11. If a division of fence between the owners of improved land has been made either by fence viewers or under an agreement in writing between the parties which has been recorded in the office of the clerk of the town, the several occupants of such land and their heirs and assigns shall erect and maintain said fences agreeably to such division; but if a person lays his land common and determines not to improve any part adjoining the fence so divided, and gives six months' notice of his determination to all the occupants of adjoining land, he shall not be required to keep up or maintain said fence during the time that his land lies common and unimproved.

M.G.L. c. 49, § 12 Purchase of rights in fence

c. 49, § 12. Purchase of rights in fence Section 12. If one person ceases to improve his land or lays open his enclosure, he shall not take away any part of the partition fence belonging to him and adjoining the next enclosure if the occupant or owner pays the reasonable value thereof, as determined in writing by the fence viewers.

M.G.L. c. 49, § 13 Enclosing of formerly unenclosed land; liability of owner; exception

c. 49, § 13. Enclosing of formerly unenclosed land; liability of owner; exception Section 13. If unenclosed land is afterward enclosed or used for depasturing, the occupant or owner shall pay for one half of each partition fence standing upon the line between it and the enclosed land of any other occupant or owner, the value thereof, as determined in writing by the fence viewers; and if thereupon such occupant or owner neglects or refuses, for thirty days after demand, to pay one half of the value, the proprietor thereof may maintain an action of contract therefor and for the costs of ascertaining the same; but the occupant or owner of unenclosed land on the island of Nantucket used only for depasturing shall not be subject to this section.

M.G.L. c. 49, § 14 Boundary disputes

c. 49, § 14. Boundary disputes Section 14. If the division line between lands of respective occupants is in dispute or unknown, the fence viewers may designate a line on which the fence shall be built, and may employ a surveyor therefor; and such line shall, for the purpose of maintaining a fence, be deemed the division line between such lands until it is determined that the true line is in another place, and until so determined all laws relative to the erection, maintenance and protection of fences shall be applicable to the fence erected or to be erected on such line.

M.G.L. c. 49, § 15 Rebuilding of fence on true boundary; duties of adjoining owners

c. 49, § 15. Rebuilding of fence on true boundary; duties of adjoining owners Section 15. If it is determined that the true division line is in another place, each occupant shall remove his part of the fence to, and rebuild the same on such line; and in case of neglect or refusal by either to remove and rebuild his share thereof, the other may apply to the fence viewers, who shall view the premises and assign a time within which the fence shall be removed and rebuilt, and shall give the delinquent party notice thereof; and if such party does not remove and rebuild the fence within the time so assigned, the other party may remove and rebuild the same and recover double the expense thereof, with the fees of the fence viewers, to be ascertained and recovered in the manner provided in section five.

M.G.L. c. 49, § 16 Fence viewers; jurisdiction where fence is on town boundary

c. 49, § 16. Fence viewers; jurisdiction where fence is on town boundary Section 16. If the line upon which a partition fence is to be made or divided is a boundary line of a town or is partly in one and partly in another town, a fence viewer shall be taken from each place.

M.G.L. c. 49, § 17 Water fences

c. 49, § 17. Water fences Section 17. A water fence, or fence running into the water, shall, unless otherwise agreed by the parties, be built by them in equal shares; and they shall have like remedies as in case of partition fences.

M.G.L. c. 49, § 18 Fence viewers; powers

c. 49, § 18. Fence viewers; powers Section 18. Fence viewers, when called upon to act under any section of this chapter, may determine whether a partition fence is required.

M.G.L. c. 49, § 19 Penalty for misfeasance

c. 49, § 19. Penalty for misfeasance Section 19. A fence viewer who, when requested, unreasonably neglects to perform any duty required of him in this chapter shall forfeit five dollars to be recovered in tort to the use of the town, or on complaint to the use of the commonwealth, and shall also be liable for all damages to the party injured.

M.G.L. c. 49, § 20 Fees

c. 49, § 20. Fees Section 20. Each fence viewer shall be paid at the rate of five dollars a day for the time during which he is employed, but his fee for services in any one case shall not be less than one dollar. Such payment shall be made by all or by such of the parties in dispute, and in such proportions, as shall be determined by a certificate in writing under the hands of the fence viewers acting in each case. If any person required to pay the whole or any portion of said fees neglects to pay the fence viewers within thirty days after the certificate has been delivered, they may recover in tort double the amount of the fees due from such delinquent person.

M.G.L. c. 49, § 21 Fences deemed a private nuisance; right of action

c. 49, § 21. Fences deemed a private nuisance; right of action Section 21. A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance. Any such owner or occupant injured in the comfort or enjoyment of his estate thereby may have an action of tort for damages under chapter two hundred and forty-three.

M.G.L. c. 49, § 22 Pounds; establishment; appointment of keeper

c. 49, § 22. Pounds; establishment; appointment of keeper Section 22. Each town may provide and maintain one or more pounds. The mayor or selectmen may appoint a pound keeper for each pound and one or more field drivers for the town.

M.G.L. c. 49, § 23 Pounds; penalty for injuring

c. 49, § 23. Pounds; penalty for injuring Section 23. Whoever wilfully injures a pound shall be punished by a fine of not more than fifty dollars or by imprisonment for not more than three months.

M.G.L. c. 49, § 24 Duties of field driver; taking up untended animals

c. 49, § 24. Duties of field driver; taking up untended animals Section 24. Every field driver shall take up horses, mules, asses, neat cattle, sheep, goats or swine going at large in the public ways, or on common and unimproved land within his town and not under the care of a keeper; and any other inhabitant of the town may take up such cattle or beasts so going at large on Sunday, and for taking up such beasts on said day the field driver or such other inhabitant of the town may in tort recover for each beast the same fees which the field driver is entitled to receive for taking up like beasts.

M.G.L. c. 49, § 25 Duties of keeper; impounding of untended animals

c. 49, § 25. Duties of keeper; impounding of untended animals Section 25. Beasts so taken up by a field driver or such inhabitant shall be forthwith impounded, and while so impounded shall be furnished with suitable food and water.

M.G.L. c. 49, § 26 Fees of field driver and pound keeper

c. 49, § 26. Fees of field driver and pound keeper Section 26. A city by vote of its city council, approved in accordance with the provisions of its charter, and a town by order adopted by the selectmen or town meeting members, may establish, and from time to time amend, a scale of fees to be paid a field driver for sheep, goats and for other beasts taken up by him, and a scale of fees to be paid a pound keeper for animals impounded in the pound.

M.G.L. c. 49, § 27 Payment of fees

c. 49, § 27. Payment of fees Section 27. The pound keeper shall not deliver to the owner any beast so impounded until the owner pays him his fees, the expense of keeping the beasts, and the fees of the field driver, which, when received, he shall pay to the field driver.

M.G.L. c. 49, § 28 Use of premises of field driver for keeping impounded animals; conditions

c. 49, § 28. Use of premises of field driver for keeping impounded animals; conditions Section 28. Beasts taken up by a field driver in a town which adopts this section or has adopted corresponding provisions of earlier laws may be impounded on his own premises; and for the purposes of this chapter he shall be considered a pound keeper, and such place on his premises shall be considered a town pound relative to beasts therein impounded.

M.G.L. c. 49, § 29 Remedies for damage done by untended animals

c. 49, § 29. Remedies for damage done by untended animals Section 29. If a person is injured in his land by horses, mules, asses, neat cattle, sheep, goats or swine, he may recover his damages in an action against the owner of the beasts or by distraining the beasts doing the damage and proceeding therewith as hereinafter directed.

M.G.L. c. 49, § 30 Care of distrained animals

c. 49, § 30. Care of distrained animals Section 30. Beasts so distrained shall be impounded in the pound or in some suitable place under the immediate care and inspection of the distrainor, and he shall furnish them with suitable food and water while they remain impounded.

M.G.L. c. 49, § 31 Duties of distrainor

c. 49, § 31. Duties of distrainor Section 31. If the beasts are impounded in the pound, the distrainor shall leave with the pound keeper a memorandum in writing, under his hand, stating the cause of impounding and the amount which he demands from the owner for the damage done by them, and also for the daily charges of feeding them; and if they are impounded in any other place, he shall on demand give a like memorandum to the owner.

M.G.L. c. 49, § 32 Release of distrained animals; conditions

c. 49, § 32. Release of distrained animals; conditions Section 32. The pound keeper shall not deliver the beasts to the owner until his fees, the amount so demanded by the distrainor for the damages and charges aforesaid, the expense, if any, of advertising, and all other legal costs and expenses have been paid to him.

M.G.L. c. 49, § 33 Notice of impounding

c. 49, § 33. Notice of impounding Section 33. Whoever impounds beasts shall, within twenty-four hours thereafter, give notice in writing, containing a description of the beasts and a statement of the time, place and cause of impounding, to the owner or person having the care of them, if known and living within six miles of the place of impounding, by delivering it to him or leaving it at his place of abode.

M.G.L. c. 49, § 34 Publication of notice of impounding

c. 49, § 34. Publication of notice of impounding Section 34. If there is no person entitled to such notice, the person impounding the beasts shall, within forty-eight hours thereafter, post a like notice in a public place in the town and in a public place in each of any two adjoining towns, if within four miles from the place where the beasts were taken; and if their value exceeds thirty dollars and no person claims them within seven days after the day of impounding, a like notice shall be published three weeks successively in a newspaper, if any, published within twenty miles of the pound, the first publication to be within fifteen days after the day of impounding.

M.G.L. c. 49, § 35 Determination of amount of damages in dispute

c. 49, § 35. Determination of amount of damages in dispute Section 35. If the owner or keeper of the beasts is dissatisfied with the claim of the person impounding them, he may have the amount for which he is liable determined by two disinterested persons, who shall be appointed and sworn by a justice of the peace or by the town clerk.

M.G.L. c. 49, § 36 Procedure for settlement of claim

c. 49, § 36. Procedure for settlement of claim Section 36. If the amount for which the beasts have been impounded and detained is not paid within fourteen days after notice of the impounding has been given as before directed, or after the last publication of such notice, the person who impounded them shall apply to the justice of the peace or to the city or town clerk, who shall, upon the receipt of the fee provided by clause (23) of section thirty-four of chapter two hundred and sixty-two, issue a warrant to two disinterested persons, to be appointed and sworn by the justice or clerk, and they shall determine the amount due from the owner of the beasts for the damages, costs and expenses for which they have been impounded and detained, including fees paid by such person and reasonable compensation for their services.

M.G.L. c. 49, § 37 Sale of animals to satisfy claim

c. 49, § 37. Sale of animals to satisfy claim Section 37. If the amount so determined is not paid forthwith, the person who impounded the beasts shall cause them to be sold by auction in the town where impounded, first advertising the sale by posting a notice thereof for twenty-four hours at some public place in such town.

M.G.L. c. 49, § 38 Disposition of proceeds

c. 49, § 38. Disposition of proceeds Section 38. The proceeds of the sale, after paying all damages, costs, expenses and charges for advertising and selling the beasts, shall be deposited in the town treasury for the use of the owner, upon proof of his right thereto within two years from the sale.

M.G.L. c. 49, § 39 Escaped or rescued animals; right to retake

c. 49, § 39. Escaped or rescued animals; right to retake Section 39. If beasts lawfully distrained or impounded escape or are rescued, the pound keeper, field driver or other person who distrained them may, within seven days thereafter, retake, hold and dispose of them as if there had been no escape or rescue.

M.G.L. c. 49, § 40 Penalty for rescuing distrained animals

c. 49, § 40. Penalty for rescuing distrained animals Section 40. Whoever rescues beasts lawfully distrained or impounded shall be liable in tort to any person injured for all damages sustained thereby and the fees and charges incurred before the rescue; and he shall also be punished by a fine of not less than five nor more than twenty dollars.

M.G.L. c. 49, § 41 Rights of owner in distress proceedings

c. 49, § 41. Rights of owner in distress proceedings Section 41. The defendant in an action for rescuing beasts distrained or impounded shall not be allowed to allege or give in evidence the insufficiency of the fences or any other fact or circumstance to show that the distress or impounding was illegal, but if there is such ground of objections to the proceedings he may avail himself thereof in an action of replevin.

Source: Massachusetts General Court (malegislature.gov)URL: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter49Fetched: 10/20/2026