
    Andrew Clowers v. John R. Sawyers et al.
    
    Pkactice. Trespass. In removing line fences. In an action of trespass, for removing a line fence dividing the lands of the plaintiff from the defendant, the jury should he instructed to ascertain from the evidence whether the fence was constructed upon the land of the defendant, or the plaintiff, or whether it was upon the supposed line between them and kept up jointly, and recognized as a line fence. If such fence was erected upon the land of the defendant he had a right to remove it; if upon the land of the plaintiff he had no such right. If, however, it appear from all the testimony that the fence was upon the supposed line between them, and kept up jointly as a line fence, the defendant had a right to remove his part of it, upon giving reasonable notice to the plaintiff of his intention to do so.
    FROM KNOX.
    Trespass vi et armis from the Circuit Court of Knox county. At the October Term, 1857, before Judge Welcker, verdict and judgment were for the plaintiff. The defendant appealed in error.
    
      MyNATT and Scott, for the plaintiff in error.
    MAYNARD, for tbe defendant in error.
   Wrisht, J,,

delivered the opinion of the Court.

This was a suit by warrant before a justice of the peace, against Clowers, for removing the rails- of a fence claimed by the plaintiffs; and on the trial in the Circuit Court judgment was rendered against him, and he has appealed in error to this Court.

The lands of the parties adjoined, and there was much proof as to where the true dividing line between them was, and on which side of the line the fence was, or whether it was a common fence between them, on a common dividing line. In this state of the facts the Circuit Judge charged the jury that the main question was, where the line between the parties ran and upon whose side of it was the alleged trespass committed. If the fence was on the defendant’s side of the line he had a right to move it, and do what he pleased with it; but if upon the plaintiff’s side he had not the right to interfere with it. If, however, the jury should find from the facts in the case, that the fence was made and kept up jointly by the defendant and the plaintiffs, or those under whom they claimed, immediately upon the line between them, then the defendant had the right to remove his portion of it upon giving to the plaintiffs, or their guardian, reasonable notice of his intention so to do.

There is no error in this charge of which Clowers can complain. It is certainly favorable enough to him. The Court did not undertake to tell the jury where the true line was, nor that, in its ascertainment, they were to look alone to the deeds of the parties, any more than to acts of acquiescence and possession. It was left to them to ascertain the line, upon all the facts; and no special instructions as to the force of the deeds and possession were asked, and the error assigned by the counsel of the plaintiff in error does not arise in the record.

Judgment affirmed.  