Opinion
(August Term, 1851.)
When a man built a rail fence upon a piece of land to which he had no title, and the owner of the land removed the rails and kept possession of them, the former has no right of action against the latter unless the removal has been effected by a breach of the peace.
APPEAL from Settle, J., at MECKLENBURG Special June Term, 1851.
Trover. The plaintiff declared for the taking of a quantity of rails which belonged to him and the conversion thereof by the defendants. To sustain his allegations he introduced a witness, who testified that the plaintiff, some five years previous to the bringing of this action, had enclosed a small piece of land by a fence, containing about one acre and a half. and had cultivated the patch. The plaintiff then introduced a second witness, who testified that the defendants had taken down and hauled off about six hundred of the rails of which the fence was made, claiming them as their own.
The defendants then offered in evidence deeds covering the land of which the plaintiff had taken possession and on which he had built the fence, and showed that he had no title thereto.
Upon this evidence the counsel for the defendants asked his Honor to charge the jury that the plaintiff was not entitled to recover for the reasons: First, that as the fence was a part of the real estate, the action for trover could not be maintained; and, secondly, that as the defendants had showed title to the land upon which the fence stood, (298) in law the fence was their property, and the plaintiff, consequently, could not recover.
The court refused to give the instruction asked for, but charged the jury that, notwithstanding the defendants had showed title to the land upon which the fence stood, still if the testimony satisfied them that the plaintiff had built with his own rails the fence, as proved by the witnesses, and has possession of the land, and the defendants had taken the rails away or any portion thereof and converted the rails to their own use, the plaintiff was entitled to recover the value thereof.
Verdict for the plaintiff, and the defendants appealed.
Osborne and Hutchinson for plaintiff.
Wilson for defendants.
The charge of his Honor affirms a principle which we think cannot be maintained. The instruction to the jury was that "notwithstanding the defendants had showed title to the land upon which the fence stood, yet the plaintiff could recover if he had built the fence with his own rails and had possession of the land, and if the defendants took them away." The action is in trover, in which it is essential to prove property in the plaintiff and a right of possession at the time of the conversion, and this property may be either absolute or special; and upon the latter an action may be maintained against a wrongdoer, but not against the rightful owner. 2 Star. on Ev., 1485. The sole question, then, in this case is, In whom was the legal title to the rails? In whom was the legal possession? The fence was built by the plaintiff on the land of the defendants without their consent. It becomes, by the act of building, a part of the freehold of the defendants upon the common law maxim, cujus est solum, ejus est usque ad coelum. If the defendants had brought an action of ejectment against the plaintiff for the land they would have recovered it upon the admitted facts of the case, (299) and with it all that was upon it constituting a part of the freehold. Could the defendant in that action have justified a removal of the fence to land belonging to himself? Certainly not. Neither, in this case, can the plaintiff maintain this action against the defendants for converting the rails to their use. They, in law, belonged to them, and they had a right to take them in such a way as not to violate the peace. Murchison v. White, 30 N.C. 52. There cannot be two adversary rights existing in different persons at the same time.
There was error in his Honor's charge for which the judgment is reversed.
PER CURIAM. Venire de novo.