
    Garrett v. Sewell.
    
      Trover ancl Trespass for Removal of Partition Fence.
    
    1, Partition fences; repair or removal by either party. — A fence erected on the line between two co-terminous proprietors, or recognized by them as being on the line, though not so in fact, is a partition fence, and belongs to them as tenants in common (Code, § 1370); either may repair it, and may lawfully enter on the land of the other for that purpose; but, if he destroys it, or removes it on his own land, he is liable in trover at the suit of the other tenant, and also in trespass if he entered on the land of the other in making the removal.
    ’ 2. Same; who may maintain trover or trespass. — If the plaintiff’s land-was rented out at the time the fence was removed by the defendant, he can not maintain either trover or trespass, which lies only in favor of- one who has either the actual possession or the immediate right of possession; but, if only the cleared land was rented out, while the fence which was removed extended through the wood-land beyond, he has a right of action for the latter part.
    •'Appeal from the Circuit Court of Cherokee.
    Tried before the Hou. JohN 33. Tally.
    This action was brought by Mrs. Sarah C. Garrett against M. N. Sewell, to recover damages for the removal of a partition fence, and was commenced on tlie 15tb ■ February, 1886. Tbe court charged tbe jury, on request, to find for tbe defendant if they believed tbe evidence, and refused a similar charge asked by tbe plaintiff; and these rulings, with others, are assigned as error.
    J. L. Buenett, for appellant,
    cited Code, §§ 942, 1370; Shipman v. Baxter, 21 Ala. 456; BlacMmrn v. Baker, 7 For.; 284; Henry v. Jones, 28 Ala. 385 ; McGhee v. Peterson, 57 Ala. 334; Brown v. Cockerell, 33 Ala. 38; 1 Obitty’s Plead. 212, 263; 6 Wait’s Act. & Def. 81; 2 Waterman on Trespass, 388 ; Symonds v. Harris, 51 Maine, 14.
    Matthews & Whiteside, and 0. Daniel, contra,
    
    cited Boswell v. Carlisle, 70 Ala. 244; Morris v. Robinson, 80 Ala.'291; Dunlap v. Steele, 80 Ala. 291; 6 Wait’s A. & D. 76; 2 Waterman on Trespass, 362, 392-3, 948-9.
   CLOPTON, J.

Appellant brings tbe suit to recover damages for the removal of tbe fence dividing her land from that of defendant. Tbe complaint contained three counts : Tbe first in trover, for tbe conversion of tbe rails ; tbe second substantially alleges that defendant wrongfully and maliciously removed a fence inclosing in part tbe plantation of plaintiff, which was a partition fence between plaintiff and defendant, and bad been agreed upon and recognized as such by plaintiff and defendant, and those under whom be claims, for more than ten years, and that its removal left tbe plantation of plaintiff exposed to depredation by stock; and tbe third, in terms, claims damages “for a trespass committed by tbe defendant,” and makes, substantially, tbe same averments as tbe second, except that tbe words wrongfully and maliciously, and the' averment as to exposure to stock, are omitted. :

Tbe following facts are uncontroverted: . In 1858, or-1859, it was agreed between J. B. Lowe, who owned tbe land on the west side, and W. M. Randle,' who owned tbe land on tbe east side of tbe fence, that it should be recognized' as tbe line between them, and as a partition fence. After occupying tbe land on tbe east side for about ten years,-' Randle sold it to Savage, and Savage to Lowe, so that Lowe' became tbe owner of the land- on both sides of tbe fence.' On a division of bis real estate between bis heirs, in 1873,' or ’74, after tbe death of Lowe, tbe land on tbe west side was allotted to plaintiff, and that on tbe east side to Mrs. Aubrey, each of whom entered into possession, treating and-recognizing tbe fence as tbe dividing line, and as a partition fence. ■ In 1879, Mrs. Aubrey sold tbe land allotted to ber to defendant, wbo moved tbe fence in 1885, about six feet on to bis land. Tbe evidence clearly shows that tbe fence was treated and recognized as on tbe line, and a partition fence, for ten years before Lowe purchased from Savage— tbe respective owners claiming to tbe fence — and that no complaint was made that tbe fence was not on tbe line until claimed by defendant in tbe latter part of 1884, or early in 1885.

Partition fences, as defined by statute, are fences erected on tbe line between lands owned by different owners. Code, § 1375. Whether it is on tbe true line, according to survey, or on a line agreed on by tbe parties, is immaterial. In Henry v. Jones, 28 Ala. 385, it was held, “If a part of tbe fence was entirely on tbe land of one of tbe proprietors, still, if it was recognized as a partition fence by both parties, it would confer tbe same rights as if it were in fact so. The recognition would operate as an estoppel en pais, and neither could complain of any act done by tbe other which would have been lawful bad tbe fence been on tbe division line.” Though a survey may demonstrate that tbe fence is not on tbe true dividing line, neither party loses any rights to tbe same. Section 942 of tbe Code provides : “When a re-survey of land is made by a county surveyor, for tbe purpose of straightening section lines, or any subdivision lines of sections, tbe owners of fences built on tbe original lines shall not lose their rights to tbe same, when tbe re-survey changes tbe original lines, and places tbe fence on tbe land of others.” Under tbe provision of section 1370 of tbe Code, to tbe effect that partition fences between improved lands are to be erected and repaired at tbe joint expense of tbe occupants, which has been tbe law since tbe act of 1807, such fences become tbe joint property of tbe adjoining proprietors.— Walker v. Watrous, 8 Ala. 493.

Whenever one tenant in common does an unlawful act, whereby bis co-tenant is injured, the law affords an appropriate remedy ; be may bring trover or trespass against bis co-tenant, when tbe thing in common is destroyed, or tbe conversion is equivalent to an exclusion of tbe right of tbe tenant suing. — Allen v. Harper, 26 Ala. 686. Tbe removal of tbe fence from tbe original dividing line, on tbe land of tbe defendant, and its appropriation to bis exclusive use, was tantamount to tbe destruction of tbe tiling in common. Symonds v. Harris, 51 Me. 14; 2 Waterman on Trespass, § 947. Either owner may lawfully enter upon tbe land of the other for the purpose of repairing a partition fence; but, if the entry is made for the purpose of destroying the fence, such entry constitutes a trespass. — Henry v. Jones, supra.

But defendant contends that, notwithstanding the evidence may clearly show the facts as above stated, under the complaint — the first count being in trover, and the others in trespass — the affirmative charge in favor of defendant was rightfully given. The contention is based on the ground, that in order to maintain trover, or trespass, plaintiff must have possession, or the right of immediate possession, at the time of the injury complained of. The gist of the action of trespass being the injury to the possession, plaintiff can not recover on his general property, if, at the time of the injury, the right of present possession and enjoyment has been conferred on another. So, also, to maintain trover, the plaintiff must have either possession or the right of immediate possession. The affirmative charge in favor of defendant assumes that plaintiff had neither. While there is evidence that a tenant of plaintiff was in possession at the time of the removal of the fence, there is also evidence tending to sliotv that only the cleared land had been rented, with permission to the tenant to get fire-wood off the woodland, which was inclosed by the fence. On this state of the evidence, the court could not assume, as matter of law, that plaintiff neither had possession, nor the right of immediate possession to the wood-land. On the contrary, if the un-contradicted evidence be believed, plaintiff is entitled to a verdict under the first count, and under the others, if it be shown that in order to remove the fence defendant entered on the land of plaintiff.

No question arises as to the measure of recovery.

Beversed and remanded.  