OF BOUNDARIES. CHAPTER 56. CHAPTER 435, VOL. 13, LAWS OF DELAWARE. AN ACT FOR THE PROTECTION OF TERRAPINS OF INDIAN RIVER certain size not SECTION 1. That from and after the passage of this act it shall be unlawful for any Terrapins of person or persons to take, carry away, use, sell, or in anywise dispose of, (or any per- to be disposed of. son or persons buying or receiving) any terrapin or terrapins taken or caught in or along Chap. 420, vol. 14. Indian River and Rehoboth Bay, or waters adjacent thereto, of less size than (six) inches on the lower or under shell, measuring lengthwise; but it is and shall be the duty of all and every such person or persons so catching, or taking any such terrapin or terrapins of less size than (six) inches on the lower or under shell, measuring as aforesaid, to put into or return back to said waters any such terrapin or terrapins so caught or taken, and any person or persons violating any of the provisions of this section shall forfeit and pay for each and every offence (fifteen) dollars, one-half for the use of the Penalty. State and one-half to the person who may sue for the same, to be recovered with cost How recovered. of suit as other debts of like amount are recoverable before any justice of the peace in Sussex County. SEC. 2. That from and after the passage of this act it shall be unlawful for any per- Unlawful to use dredges. son or persons to use any dredge or dredges for the purpose of catching or taking any terrapin or terrapins in said Indian River or Rehoboth Bay, or waters adjacent thereto; any person or persons violating this section shall forfeit and pay twenty dollars for Penalty. each and every offence, one-half for the use of the State and one-half to any person who may sue for the same, to be recovered with cost of suit as debts of like amount How recovered. are recoverable before any justice of the peace in Sussex County. marks, or mark SECTION. 1. No person shall cut, fell, alter, or remove any Penalty for boundary tree, or other land-mark, nor shall any person, without removing land lawful authority, mark any boundary tree upon any land not his ing trees. own, under penalty of forfeiting fifty dollars to the party wronged. PERPETUATING TESTIMONY OF BOUNDARIES. uate evidence of SEC. 2. Any person interested to perpetuate testimony respecting How to perpetboundaries, or land-marks, may file a petition in the Court of Chan- boundaries. cery representing the case, and naming the tenants, and the owners Petition. Subpœna. Notice. OF BOUNDARIES. CHAPTER 56. of adjoining land, and praying for an order to take depositions to perpetuate testimony respecting such bounds. Subpoena shall be issued for summoning such tenants and owners to appear and show, if they have any, objection to such order; and if any of them cannot be found, the chancellor may order proper service, or publication of Commission to notice to them. If no sufficient objection be shown, the chancellor shall order that commission issue to one or more persons, to take depositions on interrogatories filed, after ten day's written notice of the filing thereof. Notice to an attorney, or solicitor of record, shall be sufficient notice to the party for whom he appears; and notice need not be given to any person not residing in the county where the lands lie. take depositions. Record of Effect. Not to have effect without notice. Costs. Clerk; oath; commission. How to fix or preserve boundaries. Each party may produce witnesses, to be examined under the commission. The chancellor may suppress the depositions, and make new orders; or he may order them to be recorded, and they shall then be evidence against the parties to the petition and their privies, in any suit, or controversy, in which the bounds which they concern shall come in question, in case of the death of witnesses, or inability to procure their attendance. If any person be not summoned, or notified, the order for commission may be made without notice to him; but he shall not be affected by the proceedings. Each party shall bear the costs of the attendance and examination of witnesses produced by him; and the other costs shall be paid by the petitioner. The commissioners may employ a clerk. They and their clerk shall be sworn, faithfully to perform their duty. A commission directed to several, may be joint and several. MARKING AND BOUNDING LANDS. SEC. 3. Any person seized of any estate in possession, reversion, or remainder, or possessed of any term, not less than fifteen years, in any lands, the bounds whereof are unknown, or are in danger of being lost, may apply to the Superior Court, in the county where Commission to the lands are, for a commission to mark and bound the same; and mark and bound, the Court may issue such commission to any five persons agreed on by the parties, or appointed by the Court; but no surveyor shall be appointed on such commission. Notice of application. Three months' notice of such application shall be given by advertisements, posted at the court house door of the county, and at five public places of the hundred where the land lies, and also delivered to the persons in possession of the adjoining lands, or left at their dwellings, and to the owners of such lands, if within the State. If such lands be unoccupied, or the owners unknown, the Court may direct such service, of publication of notice, as shall be judged proper. SEC. 4. The said commissioners shall give at least twenty days' OF BOUNDARIES. CHAPTER 56. executing com notice of their meeting to execute the commission, by advertise- Notice of ments at the court house door, and at five public places in the hun- mission. dred where the land lies; and shall meet on the land accordingly. Place. They shall be sworn to mark and bound the land mentioned in the Oath. commission, most agreeably to the true original location thereof, according to the evidence, without favor, affection, or partiality, according to the best of their experience, ability and judgment, and make true return thereof. They may direct writs of summons for Witnesses. witnesses to be issued out of said court, and the neglect of such witnesses to attend, may be punished as a contempt of court. They may cause the land mentioned in the commission, or any other land, to be surveyed, and may appoint one or more surveyors and chain Surveys. carriers to make the survey, and may swear them to do their duty faithfully and impartially, according to the best of their skill and ability. They may also swear the witnesses. They may adjourn Adjournments. from time to time. They, or a majority of them concurring, shall cause the land mentioned in the commission to be marked and bounded according to its true original location, and shall return a Return. certificate of such marked bounds, or lines, to the Court, under their hands; which return shall be recorded in the recorder's office of the Record. county, unless it shall be set aside by the Court for irregularity. SEC. 5. If no suit be brought within seven years from such re- Effect of return. turn, to controvert the decision of the commissioners, or in which the accuracy of the bounds, or lines, fixed by them shall be questioned, the record of such return shall be conclusive evidence of the original location of such land, and of the lines and boundaries thereof; or if such return shall, in any such suit, be confirmed in any particular by the verdict of a jury, it shall be conclusive to that extent, as between the same parties, and those claiming under them, or any of them; saving to infants, married women, and persons in- Saving. sane, imprisoned, or beyond sea, and those claiming under them, the right to bring any such suit, within five years from the removal of such disability; and provided also, that the said term of seven Proviso. years shall not begin to run against any person, while he is in possession of the land in controversy. agreement not to May be so fixed of made. SEC. 6. If any lines, or boundaries, shall have been ascertained Lines fixed by and fixed by agreement of parties, they shall not be disturbed by age disturbed any commission, as between the same parties, or those claiming un- by commission. der either of them; and if any persons shall hereafter agree to as- and record therecertain and fix the lines, or boundaries, of their land, such agreement, and a plot of the land so settled, may, by the consent of the parties interested, be recorded as aforesaid, and shall have the same effect as if the location of such land had been settled by commis- Effect. sioners. to commission to SEC. 7. When several persons hold separate parts of the same Who are entitled tract, they, or any of them, may have a commission, as aforesaid, mark and bound. to mark and bound the whole, as well as the several parts thereof; Proviso. Fees. Surveyors. OF FENCES. CHAPTER 57. and when any person holding a younger survey, is interested in the locating of interfering or neighboring elder surveys, he shall have a commission, as aforesaid, to mark, and bound such elder survey: provided, that three months written notice shall have been given to the person seized of such elder tract, of the intention to apply for such commission, and such person shall have neglected to apply for and obtained such commission. Such commission shall be executed in like manner, and have the same effect, as if obtained by a person seized of the land therein mentioned. SEC. 8. Each commissioner shall be entitled to one dollar per Commissioners. day for his services, each surveyor to two dollars per day, the chain carriers to eighty cents per day, and each witness to fifty cents per day, to be paid by the person at whose request the service is performed; and the court may compel payment by attachment. Chain carriers, Witnesses; how paid. Chap. 656, vol. 19 Liability for trespasses. How assessed. Fence-viewers. Appointment. SECTION 1. A good fence of wood, [iron or wood, and iron rods or wire; provided that barbed wire shall not be used for division fences except by the mutual consent of the owners of the properties divided by such fences,] stone, or well set thorn, four and a half feet high, or four feet high and having a ditch within two feet of it, shall be deemed a lawful fence in New Castle and Kent counties; and in Sussex county four feet shall be the height of lawful fences. SEC. 2. If any horse, cattle, goat, sheep, or hogs, shall trespass on any grounds inclosed with lawful fence, the owner of such animal, so trespassing, shall pay such damages as shall be awarded by the fence-viewers; and any person having unruly horses, goats, sheep, hogs, or cattle, which break through lawful fences, shall, after notice thereof, be liable for double damages for any trespass committed by such animal, after such notice, to be awarded by the fence-viewers. SEC. 3. The Court of General Sessions shall annually appoint a sufficient number of persons in each hundred to be fence-viewers; who shall be the sole judges of the sufficiency of any fences, of the charges of making or repairing partition. or other fences, and how borne, and of damages by animals trespassing. OF FENCES. CHAPTER 57. Any three of them may act, and a majority of those acting may Quorum, decide any matter. They shall be allowed one dollar each per day, and three cents a Fees. mile for necessary travel, to be paid by the party requiring the service; but they may award the costs, or any part thereof to be paid by any person concerned. SEC. 4. The respective occupants of lands inclosed by fences, Partition fences. shall maintain partition fences between them in equal shares, so long as both parties continue to improve the same. unlawful fence, Where any person shall inclose land adjoining another's inclosed New enclosures, land, so that any part of the fence, or fence and ditch, or hedge and ditch, or wall, already made, becomes a partition fence, the fenceviewers shall determine what sum shall be paid by the one to the other; and the fence shall then be maintained by the parties equally. SEC. 5. If the fence-viewers judge any fence to be insufficient, Notice of they shall give notice thereof to the person bound to maintain the same; and if one of several persons so bound, upon such notice and request, shall neglect, for five days, to make his part of such fence good, or pay his share of the same, or of any partition fence before Remedy. made; any justice of the peace may, on complaint, direct the party aggrieved thereby, to repair such fence, and he shall be re-imbursed double the cost which the person so neglecting to repair the same, was bound to pay or contribute. Division ditches, how kept up. SEC. 6. The adjoining owners, or possessors, of embanked marshes or meadows, shall be obliged to join in cutting division ditches, at and fences, least eight feet wide and two and a-half feet deep, and in making fences, at least two feet high, within one foot of the edge of said ditches, at their common cost. Such division ditches shall be well cleansed at least once a year, and the fences kept in good repair; and they shall be deemed lawful fences. If any such owner, or possessor, shall refuse, or neglect to join Neglect; remedy. in making such ditch and fence, or to keep the same in good order and repair, the adjoining owner, or possessor, may make, or cleanse and repair the same; and may recover such proportion of the cost thereof as the fence-viewers shall determine the party neglecting ought to pay. tenant to be allowed these This not to affect A guardian shall be allowed any sum so expended, or paid, for Guardian or his ward; and a lessee, or tenant, may deduct the same from his rent, unless otherwise stipulated by the contract. This section shall expenses. not be construed to repeal any special law respecting the improve- any special law. ment of marsh, or meadow, whereby any other provision is made concerning dividing ditches or fences. by fence-view SEC. 7. All sums awarded by fence-viewers, or directed by them to Sums awarded be paid, may be recovered as other debts of like amount are recovers; how reerable. covered. |