
    *TOLLAND COUNTY,
    NOVEMBER TERM, 1859.
    Present, Storks, C. J., Hinman, Ellsworth, and Sanford, Js.
    Reuben Edgerton and another vs. Clark B. Moore.
    Under the statute (Rev. Stat., tit. 15, § 5,) which provides that, where any person shall, after notice from the fence viewers, have neglected to repair liis part of a divisional fence, and, upon such neglect, the same shall have been repaired by the adjoining owner, the fence viewers shall estimate the value of such repairs and make a certificate thereof, and that the party making the repairs shall have a right to recover double'their value from the delinquent party, it is not necessary that the fence viewers should give notice to such delinquent party of the time of their meeting to estimate the value of the repairs.
    Fence viewers are not judicial officers.
    Action on the statute with regard to fences, (Rev. Stat., tit. 15,) to recover double the value of the repairs of a divisional fence, under the provisions of the 5th section of the act.
    
    [ *601 ] *On the trial of the case to the jury, on the general issue, it was admitted that the fence viewers, at the time alleged in the declaration, gave notice in writing in due form to the defendant, of the insufficiency of the fence, and that the defendant did not, within fifteen days thereafter, repair the same. The plaintiffs claimed, and offered evidence to prove, that after the expiration of the fifteen days they put the fence in repair, and that the fence viewers examined the same and judged it to be sufficient; and that they estimated the value of the repairs made by the plaintiffs, and made a certificate thereof under their hands, with an account of their fees, according to law. The defendant on his part offered evidence to prove, and it was not denied by the plaintiffs, that no notice was given by the fence viewers to the defendant of the time when they would meet to decide on the sufficiency and value of the repairs, and that he was not present, and had no opportunity to be present, at the time of such-examination and decision.- The defendant therefore claimed, as matter of law, that the award of the fence viewers was in consequence wholly void, and requested the court so to charge the jury. The court instructed them that, as matter of law, the action of the fence viewers in deciding on the sufficiency and value of the repairs, was by reason of this fact wholly void, and that the plaintiff’s action could not be sustained. The jury thereupon returned a verdict for the defendant, and the plaintiff moved for a new trial.
    
      Loomis and Bill, in support of the motion.
    1. The proceeding in question is entirely a statutory one, and the statute which assumes to prescribe its details does not, either expressly or by implication, require notice to be given by the fence viewers of the time of their meeting to determine upon the sufficiency and value of the repairs. It is on the other hand to be inferred from the fact that notice of the insufficiency of the fence is expressly provided for, that no other notice was intended.
    2. The practice and the most approved forms of declarations, on the section of the statute referred to, accord *with this claim. If it is essential that the fence [ *602 ] viewers give such notice, no declaration can be good that does not contain an express allegation that such notice was given. But our best approved forms contain.no such allegation. 2 Swift Dig., 572. Sharp v. Curtiss, 15 Conn., 526.
    3. The duties of fence viewers, as defined by the statute and explained by our courts, are such as to render a notice unnecessary. They are not judicial officers. They are to decide, not by weighing evidence, but by personal examination. Fox v. Beebe, 24 Conn., 271. Their estimate of the value of repairs is not distinguishable in principle from any other legal appraisement. And in all the instances of appraisals provided for by our statutes, there are none in which a notice of time and place has ever been supposed necessary, unless in conformity with some positive statutory direction.
    4. The cases from the Massachusetts and Maine reports, which hold that notice should be given by the fence viewers in such cases, do not affect our argument. 1st. The courts of those states have adopted radically different views from those of our own state, with regard to the character and functions of those officers. They treat them as judicial officers, before whom a trial or judicial inquiry is to be had. Lamb v. Hicks, 11 Met., 496. Scott v. Dickinson, 14 Pick., 276. Harris v. Sturdivant, 29 Maine, 366. But our court, in Fox v. Beebe, supra, takes an entirely different view of their character, and classes them with inspectors of provisions and other like officers, who decide by direct examination and not by the testimony of witnesses, and before whom there is no formal hearing or trial, as before auditors or committees in chancery. 2d. But there is an important difference between the statutes of those states and our own. That of Maine is a transcript of that of Massachusetts, and both require that the fence viewers, before proceeding to adjudge the old fence insufficient, “ shall give due notice to each party.” The fact that notice is required of the time of their inspection of the old fence, would seem to imply that a like notice is to be given of the time of their inspection of the new one. But our statute contains no such requirement, and therefore there is no room for the same inference here.
    [ *608 ] *Hyde, contra.
    1. The proceedings of fence viewers in estimating the value of the repairs made under the statute referred to, are of a judicial nature. They involve the necessity of an inquiry into the amount of. labor performed by the party making the repairs, its value, and the quantity and value of the materials furnished by him. And their decision is final and conclusive upon the other party, the statute allowing him.no appeal. Sanborn v. Fellows, 2 Foster, 478.
    2. Whenever a court, or any person exercising a legal authority, is to act judicially, or to exercise discretion in a matter affecting the rights of another, the party to be affected is to have reasonable notice of the time and place where such act is to be done, to the end that he may be heard in defense of those rights. New Jersey Turnpike Co. v. Hall, 2 Harris, 337. Kinderhook v. Claw, 15 Johns., 537. Corliss v. Corliss, 8 Verm., 389. Rathbun v. Miller, 6 Johns., 281. State Bank v. Marsh, 2 Eng., (Ark.,) 390. Harlow v. Pike, 3 Greenl., 438. 4 Bla. Com., 283 et seq. King v. Venables, 2 Ld. Raym., 1405. Rex v. Cleg, 1 Stra., 475.
    3. The fact that no notice is expressly required by the .statute should have but little weight, since none is required by the 3d, 4th, 5th, 6th and 8th sections of the same statute, though evidently necessary.
    4. In other states, under- a. similar statute, notice has been decided to be necessary. Scott v. Dickinson, 14 Pick., 276. Lamb v. Hicks, 11 Met., 496. Harris v. Sturdivant, 29 Maine, 366.
    
      
      The section of the statute referred to is as follows: “ If any person who ought to maintain any divisional fence, shall refuse or neglect to keep it in sufficient repair, the party aggrieved shall have power to call on the fence-viewers to view the same; and if they find such fence to be insufficient, they shall, without delay, give notice iu writing of such insufficiency to the person or persons who aro bound to repair it; and if he or they do not within fifteen days put the same in sufficient repair, then the party aggrieved may do it; and wh£u the same shall be completed, and judged sufficient by said fence-viewers, they shall estimate the value of such repairs, and make a certificate thereof under their hands, with an account of their fees; and the party aggrieved shall have the right to recover of the party whc ought to have made such repairs, double the value of such repairs, together with the fees of the fence-viewers; and on his neglect or refusal to mate payment thereof, for thirty days after it shall be demanded, the party aggi ioved may sue for and recover the same by an action on the case.”
    
   Sanford, J.

This is an action brought to recover the double value of repairs made by the plaintiffs upon the fence of . the defendant, under the fifth section of the statute concerning fences and common fields. .The question-, reserved for our cónsideration is, whether the proceedings in relation to the sufficiency and value of the repairs made were illegal and void,, because the fence viewers gave to the defendant no notice of their meeting for the examination and valuation of such repairs, and he was not present thereat.

[ *604 ] *It was admitted on the trial that notice of the insufficiency of the defendant’s, fence was duly given, and that no repairs were made .by the defendant within the time prescribed by law. We think the law required no further notice from the fence viewers. In the case of Fox v. Beebe, 24 Conn., 271, it was held that fence viewers are not judicial officers, that their functions are more analogous to those of appraisers and inspectors, and other boards of that character, than of judges or of courts, and that no notice whatever need be given of their first examination of the defective fence until after it has been made. We think the doctrine of the court in that case should be adopted in the case now before us. The character of the office is indicated by its name, and its duties are, in the section under which these proceedings were had, so distinctly specified as to leave no room to doubt but that fence viewers are expected to proceed in a summary manner, upon, their own view, and not upon the testimony of others. They are to be, in the first place, “ called on ” by the aggrieved party, “to view” the defective fence, and if, upon such view, they find it insufficient, they are to give notice in writing of such insufficiency to the party whose duty it is to keep the fence in repair, and when the repairs have been made by the complainant, they are to be “judged” by the fence viewers complete, and the fence viewers are to “ estimate the value of,” or appraise, such repairs, not to ascertain their cost by evidence or by calculation. Pence viewers are generally selected on account of their presumed fitness for the place, by reason of their familiar acquaintance with the subject of their examinations, and they constitute a domestic tribunal of great utility in preserving the peace and harmony of neighborhoods ; a tribunal always at hand, readily accessible, economical in its action, and prompt in its conclusions ; while its awards, being conclusive only as to the insufficiency of the fence when first examined, and the sufficiency and value of the repairs actually made, involve but little property, determine no question of title, and fix no future liability. Its proceedings being regulated by the express provisions of our statute, the validity of such proceedings *must be tested by those provisions, rather than [ *605 ] by the rules of the common law- regarding proceedings in courts of justice, or by the determinations of courts in states whose statutes are unlike our own.

It seems to have been the intention of our legislature, while it provided the remedy, to point out the mode in which that remedy should be obtained; and from the fact that one notification is in express terms required, and only one, we are authorized to infer that no other was contemplated, or intended to be required. “ Expressio ■unius, exclusio alterius.” By the notice expressly provided for, the defendant is apprized of the due commencement of the proceedings, and the law informs him how those proceedings are to be followed up, and of his own rights and liabilities under them. He may make the requisite repairs himself, and so arrest the proceedings of his adversary altogether, and he may by inquiry obtain an opportunity to be present at the final examination and appraisal.

It is not to be supposed that fence viewers will proceed clandestinely, or deny to the defendant, on inquiry, such reasonable information as will enable him to be present at their examinations. All their proceedings should be characterized by publicity, as well as by perfect fairness and impartiality, but we think the notice claimed by the defendant, was not required by law.

A new trial therefore must be advised.

In this opinion the other judges concurred.

New trial advised.  