
    (90 Hun, 27.)
    DEY v. PRENTISS.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1. Covenants Running with the 'Land.
    A covenant in a deed, that the grantee shall keep in repair the division fence between the land conveyed and adjoining land of the grantor, runs with the land.
    
      2. Line Fences—Burden of Proof.
    Where a lot is burdened with a servitude requiring the owner to construct the entire line fence, he must show, in an action to recover from an adjoining landowner the cost of a portion of the fence, that his land has been released from the servitude.
    S. Appeal—Objections.not Raised Below.
    It cannot be asserted for the first time on appeal that a defense was not available under the pleadings.
    4. Fence Viewers—Line Fences—Estoppel.
    Where one of two adjoining landowners is bound by covenant to maintain a line fence, fence viewers have no jurisdiction to apportion the portion of the fence to be built by each owner, and therefore the other is not estopped, by the decision of the viewers, though 'they were appointed with his consent, to assert that the first was bound to build the entire fence. Adams v. Van Alstyne, 25 N. Y. 236, followed.
    Appeal from Allegany county court.
    Action by Samuel G. Dey against Minnie Prentiss to recover the amount expended by plaintiff in building defendant’s portion of a division fence. From a judgment entered on a verdict in favor of defendant, rendered by the direction of the court, and from an order denying a motion for a new trial, made on the minutes, plaintiff appeals. Affirmed.
    •Argued before LEWIS, BRADLEY, WARD, and DAVY, JJ.
    G. W. Harding, for appellant.
    H. H. Relya, for respondent.
   LEWIS, J.

This action was brought to recover pay for building the defendant’s portion of a division fence between the lands of the parties, situate in the town of Hume, Allegany county. It was originally tried in a" justice court, where the plaintiff had a verdict. The defendant appealed, and the case was tried in the county court, where a verdict was directed for the defendant, of no cause of action.

It is alleged in the plaintiff’s complaint that the parties owned adjoining lands; that they agreed, upon the portion of the line fence between them lands which each should build; that the defendant neglected and refused to build her portion of the fence for the period of more than one month after being requested so to do by the plaintiff; that the plaintiff thereafter built the same, at an expense of $12.83, and that, by virtue of the statutes relating to division fences, the defendant became liable to pay him said sum of money. Among other defenses interposed by the defendant, was a general denial.

It appeared upon the trial, that the lands of the parties formerly belonged to one Daniel Leaver. Leaver obtained his title by a deed from one Austin Partridge in the year 1855, and entered into possession thereof. Out of the land so conveyed to him by Partridge, Leaver deeded the plaintiff’s premises, of about four acres, to one Joseph Luckey, by deed dated March 1, 1863. The deed to Luckey contained the following covenant: “And the said Luckey is to build, .and keep in repair, all line fences between said lot and Jots adjoining, owned now by said Daniel Leaver.” Luckey entered into possession and occupied the land, so conveyed to him many years, and until he died. Defendant’s lot was a part of the farm not conveyed to Luckey by Leaver, and it adjoined the piece of land conveyed to Luckey. Luckey built and maintained, up to the time of his death, the line fence between his lot and the land now owned by the defendant. A Mr. Weaver occupied plaintiff’s lot for 10 or 12 years after the death of Luckey under a deed from one Charles Flenagin. Weaver built and maintained the line fences in question while he was in possession. From whom Flenagin got the title does not appear. Weaver’s title deed was shown to be in the possession of the plaintiff at the time of the trial, but it was not put in evidence. Although a complete chain of the title from Leaver to the plaintiff was not shown upon the trial, the presumption is that his title came through Leaver, as did also that of the defendant’s.

Under -the evidence, the burden, we think, was upon the plaintiff to show that his lot had in some way been released from the burden imposed upon it by the Leaver deed. This he failed to do. We agree with the county court that the covenant in the Leaver deed requiring the grantee, Luckey, to build and keep in repair the line fence in question, runs with the land. It was a covenant inserted in the deed for the benefit of the grantor, as owner of the adjoining land not conveyed, and which is now owned by the defendant. It released the defendant’s lot from the burden of thereafter building or maintaining a portion of the line fence between these lots. The distinction between covenants running with the land, and collateral covenants, which do not run with the land, is very clearly pointed out in the cases of Allen v. Culver, 13 Denio, 284, 297; Aikin v. Railroad Co., 26 Barb. 289; and Countryman v. Deck, 13 Abb. N. C. 110.

The appellant’s counsel contends that the defendant was not entitled to avail herself of this defense, for the reason that she had failed to plead it. The deed from Leaver, containing the covenant mentioned, was put in evidence by the defendant without the objection being made that the defense was not pleaded. It is too late to raise the question upon appeal. Had it been raised at the trial, the answer might have been amended, if deemed necessary. Whether, under the general denial, the defendant would not have been entitled to the evidence, we are not called upon to decide.

At the suggestion of the plaintiff, and by consent of the defendant, fence viewers were called upon to apportion the line fence between the lands in question. They designated the part each should build, requiring the defendant to build that portion of the line fence for the building of which this action was brought. This fact is relied upon by the plaintiff as estopping the defendant from claiming the exemption mentioned. The case of Adams v. Van Alstyne, 25 N. Y. 236, would seem to have settled that question against the plaintiff’s contention.

The judgment and order appealed from should be affirmed. All concur.  