#### Piper *v.*Piper.

Woodland through which the owner’s cattle roam as a part of their pasture is “under improvement,” within the meaning of the statute of fences, Gen. Stats., c. 128, *s.*1.

When, at a hearing before fence-viewers for the appraisal of a fence, upon Gen. Stats., c. 128, s. 8, the defendant makes an objection, but does not object to the location of the fence built for him by the plaintiff on the plaintiff’s land, not on the boundary line, but at the place where its construction would be the most economical and advantageous for the defendant, the defendant cannot object to the location in a suit brought, upon *ss.*9 and 15, for double the value of the fence and the fence-viewers’ fees.

Assumpsit, upon Gen. Stats., *e.*128, to recover double tbe value of a fence appraised by tbe fence-viewers, and tbeir fees. Facts found by a referee. Tbe defendant is tbe actual occupant of land north of and adjoining tbe plaintiff’s land. In 1876, by a writing undei seal, tbey made a division of tbe partition fence, and agreed to build according to tbe division. Tbe defendant having neglected to build bis part, tbe fence-viewers, upon due proceedings, gave (him notice to build it. Tbe defendant not complying with tbe potice, tbe plaintiff built tbe defendant’s part, and it was appraised by tbe fence-viewers. At both bearings tbe defendant appeared. At tbe second bearing be made an untenable objection to tbe qualification of a member of tbe tribunal.

On the defendant’s side of a part of tbe line where be agreed to build tbe fence is a tract of bis woodland, between which and bis adjoining pasture there is no fence, and through which bis cattle roam.

For á distanfte of ten or twelve rods, tbe defendant’s part of tbe line runs across a steep ledge, and for that distance tbe plaintiff built tbe fence on bis own land, at tbe top of tbe ledge, from three to four feet south of tbe line. Tbe referee found for tbe plaintiff.

Wilson, for tbe defendant.

Tbe defendant was not bound to maintain a partition fence between tbe plaintiff’s land and tbe woodland which was not under improvement. Gen. Stats., *c.*128, *ss.*1, 12.

And be is not liable to pay for tbe fence built by tbe plaintiff, because a part of it not being on tbe line, it is not tbe partition fence. Gen. Stats., *c.*128, *s.*1; *Gallup*v. Mulvah, 24 N. H. 204, 207; *Glidden*v. Towle, 31 N. H. 147, 164. If stakes or wooden posts could not be set on tbe line across the ledge, iron posts could .be used, or a stone wall could be built.

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      *Burrows ‡*Jewell, for the plaintiff.

Doe, C. J.

The defendant’s woodland was so used by him as to mate a partition fenee necessary. His cattle roamed through it as a part of their pasture, and the plaintiff needed a protection against them which he might not have needed if it bad been cultivated. Within the meaning of the statute of fences, the woodland was under improvement, as a cattle-yard would be. *Chase*v. *Jefts,*58 N. H. 280. The division made by the parties in writing included this part of the line, and contained the defendant’s express acceptance of this part, and his express agreement to build and maintain a fence there. By this written division and agreement, be induced tbe plaintiff and tbe fence-viewers to act upon Ms admission that the woodland was under improvement.

The defendant's non-observance of his agreement, and of the fence-viewers’ notice to build Ms part of the fence, authorized the plaintiff to build it at the defendant’s expense. Gen. Stats., *c.*128, *ss.*1, 2, 6, 7, 8, 9, 19. The plaintiff had a right to build it across tbe ledge, on the line, although the expense would be greater there than a few feet further south, on the plaintiff’s land, where be did build it. Waiving Ms own right for the benefit of tbe defendant, be put the fence where it would be the least expensive and most advantageous for the defendant, and called the fence-viewers to appraise it. The defendant, being notified, attended the hearing,, and objected, but did not present the objection which he now makes to the location. If be bad presented it then, tbe plaintiff could have obviated it by discontinuing that proceeding (if its discontinuance would have been necessary), building on the lino across tbe ledge at a greater expense for the defendant, and calling-out the fence-viewers again.

Tbe trial of tbe question of value was a judicial inquiry: tbe defendant was entitled to notice, and an opportunity to be beard, and tbe appraisal was “final and conclusive upon the parties.” Gen. Stats., *e.*128, *ss.*14,17. And if it was tbe duty of the fence-viewers to determine tbe value without undertaking to decide the question of the defendant’s liability, tbe defendant is nevertheless precluded from denying tbe fact wbicb bis conduct caused the plaintiff to believe in and act upon. Having attended the trial, and, by making a groundless objection and witholding this one, having induced the plaintiff to proceed to judgment of appraisal, resort to this court for execution, and thus change his position, in the reasonable belief that the defendant waived the objection of location, he is estopped to say he did not waive it. When the fence was tendered to the defendant by the proceeding for appraisal, he was required by good faith to waive this objection, ox* present it when tbe plaintiff could obviate it by moving tbe fence before judgment of appraisal, as a creditor, entitled to legal tender, is required to object to other customary money when it is tendered. *100or waive the objection. *Lyman*v. Littleton, 50 N. H. 42, 45, 46. The plaintiff had as much reason to suppose the defendant would not object to the most advantageous location, as a debtor has to suppose his creditor will not object to ordinary currency worth as much as legal tender.

When the defendant pays for the fence it will be his property. The boundary line will not be changed. And we see no difficulties in the future exercise of the rights of the parties, sufficient to take the case out of the operation of tbe rule that disallows the unjust effect of belated objections.

*Judgment for the*plaintiff'.

Smith, J., did not sit: the others concurred.