Sayles v. Bemis

Taylor, J".

The counsel for the appellant insist that it was error to direct a verdict for the defendant. The learned circuit judge evidently treated the action as brought for the sole purpose of recovering the value of the cow, and not as an action for trespass upon real estate; and, treating it as such, he then held that as there was no direct and positive evidence that the plaintiff was the sole owner of the fence which had been taken down by the defendant, there was no' evidence in the case tending to show that he was guilty of a trespass or negligence in so doing. The learned judge held that as the plaintiff had not shown affirmatively that the fence was owned by her, the defendant had, as against her, the right to take the same down and leave it down.

"We think the learned judge erred in determining that the action was not an action for trespass upon the plaintiff’s real estate, and also in holding that in the absence of affirmative proof showing that the plaintiff was the owner of the fence taken down, the defendant had the right as against her to remove the same.

The complaint contains apt allegations setting up a cause of action for unlawfully and forcibly .breaking and entering upon her premises, and is, we think, very clearly an action of trespass to the realty; and the allegations in relation to the death of the cow are inserted for the purpose of recovering the consequential damages resulting from such trespass. It cannot be doubted that if there had. been no allegations in the complaint other than those alleging an unlawful, wilful, and forcible entry of the plaintiff’s premises, and the tearing down of the plaintiff’s fence thereon, and inclosing the same, it would have stated a cause of action; and that upon the proof of the allegations the plaintiff would have been entitled to recover at least nominal damages and costs of the action. The other allegation in regard to the death of the cow, caused by such unlawful entry and removal of the fence, went only to the question of damages. These allegations, as stated in the complaint, do not constitute a *319 separate cause of action. The evidence on the part of the plaintiff was sufficient to have justified the jury in finding a verdict in her favor for the unlawful breaking and entry upon her land, and although she would have been entitled to only nominal damages, such damages would have entitled her to the costs of the action, and it was error, therefore, to take the case from the jury upon that part of the plaintiff’s case. Eaton v. Lyman, 30 Wis., 41 -46.

This action having been brought in justice’s court, the plaintiff, upon an appeal to the circuit court from a judgment against her in the justice’s court, is entitled to recover costs if she recover any damages in the circuit court. Sec. 2925, R. S. 1878. It was the duty of-the circuit judge to have submitted to the jury the question whether the entry of the defendant upon the plaintiff’s land with his teams for the purpose of drawing wood was lawful. Upon that question the evidence was conflicting, and it was for the jury to pass upon the question of fact. This question of the lawfulness of the entry of the defendant with his teams to draw wood across the plaintiff’s land was of vital importance upon the other question, viz., the right of the defendant to remove the fence inclosing plaintiff’s land. If it were true that he had the consent of the plaintiff or her agent to draw wood across her land, it would by implication give the defendant the right to remove her west fence for that purpose. If he had the right to draw his wood across the plaintiff’s land under a license given by her or her authorized agent, such license would probably include a license to take down so much of the fence on her west line as was necessary to perform such work. In such case taking down the fence would not be a wrongful act; and in such case, if the defendant could be made liable at all for the- escape of the plaintiff’s cow through the opening in the fence made by him for the purpose of drawing his wood, he could only be held liable on the ground that he carelessly and negligently left the fence open when not engaged in drawing such wood.

*320 We are of the opinion that the learned circuit judge was mistaken in holding, as a question of law, that, under the evidence, the defendant was guilty of no wrong in taking-down the fence in question. We think the evidence tended at least to show, if it did not in fact show, that the fence which was alleged to have been taken down by the defendant was a line fence between the lands in the possession of the plaintiff and those in the possession of the defendant; and, being such line fence, the right to tear it down does not depend upon its ownership. Even though the fence had been divided as a line fence, and that part of it which was torn down by the defendant 'had been set apart to him as his fence, still he would have no right to remove or open such fence as against the plaintiff. See secs. 1391, 1396, 1400, R. S. Under the law of this state a line fence between adjoining owners or occupants cannot be lawfully removed by either party without the consent of the other, except in the cases provided for in sec. 1400 above cited. In the absence of any proof of a legal division of a line fence, the presumption as to ownership is that it is the common property of the adjoining owners. Tyler on Boundaries, Renees, etc., 352; Cubitt v. Porter, 8 Barn. & C., 257; Pitzner v. Shinnick, 41 Wis., 676 -683; Aylesworth v. Herrington, 17 Mich., 417 . If it be urged that because the parties are presumed to be tenants in common of the line fence in the absence of any proof in regard to its ownership, no action of trespass can be maintained by the one owner against the other for taking down a part thereof, it can be answered in this case that the plaintiff does not, in her complaint, allege that such act was a trespass, and seek to recover on that ground; but she alleges that because the defendant did remove the fence her cow escaped from her inclosure into the defendant’s land, and was there killed. The question is not whether, under the evidence, the removal of the fence was a trespass as against the plaintiff, but whether as to her it was unlawful or wrongful; and if it was, and damage ensued on account *321 of such wrongful act, then the defendant is liable. Had the fence been divided, and had the defendant owned the'fence at the place where he tore the same down, the fence being a line fence, he would have no right to tear it down or open it without giving notice to the plaintiff, and them only in the cases mentioned in said sec. 1400, R. S. 1878. The fact that, the fence is a line fence makes' it unlawful for either of the adjoining owners, as against the other, to remove or tear it down, and the question of ownership is immaterial.

We express no opinion on the -question of the sufficiency of the evidence introduced on the part of the plaintiff to justify a verdict in her favor for the value of the cow, had the jury, upon proper instructions, found that the defendant, had unlawfully torn down the line fence, and that the cow-had in fact strayed through such opening in the fence mpon-the defendant’s land and there died. That question was-, not considered by tbe court below, and we do not feel called upon to pass up,on it on this appeal.

By the Court.— The judgment of the circuit court is reversed, and the case remanded for a new trial.