#### Henry Miller, jun. *against*Elizabeth Barnet.

ON DEMURRER.

Under the township commit-authority ofwliere.tfiereis a partition fence.

Th®ycannot sition to be c5iansed- *(a)*

IN *November*181G, *Miller*commenced an action of trespass against the defendant. The declaration is in the usual form. The first count complains that the defendant, on the loth *November*1815, and on divers days, &c. with force and arms, broke and entered a certain close . , . • , i the said *Jlenry,*situate m the township oí *. lewksbury,*m the county of *Hunterdon,*and then and there trampled down, &c. the grass and corn of the plaintiff, &c. and with cattle, &c. trampled down grass and corn, &c. The second count charges that with hoes, &c. she dug, &c. and planted, &c. three hundred yards of fence, over and through the grass and corn of the plaintiff, &c. and with feet and cattle, &c. Third count charges the same as the first, done by her agents and servants. Fourth count same as second, but done by her agents and servants.

1st plea was not guilty, and issue. 2nd plea, *liberum tenementum,*and issue.

*630The 3rd plea in substance, is as follows: that the plain-*ought not to have or maintain his action, because the lands of the said *Barnet*and *Miller*joined each other in the said township of *Tewksbury,*and the said *Barnet*proposing to make the division or partition fence between them, and they not being able to agree upon the place where the same ought to be placed and made, the said *Barnet*thereupon, and before the time, when, &c. to wit, on the 23d of *October*1815, at said township, according to the form of the statute in such case, made and provided, did apply to *Andrew Bartles*and *Aaron Longstreet,*two of the township committee of said township, residing nearest the premises, and being disinterested and indifferent between the said *Barnet*and *Miller;*and the said *Bartles*and *Longstreet*having met together pursuant to said application, after hearing the allegations and proofs of the said parties according to the form of the statute, &c. by writing under their hands, bearing date the 23d of *October*1815, and delivered to each of the parties, did therein and thereby fix and appoint the place where the said division 'or partition fence should or ought to be made, as follows, viz. beginning, &c. (pointing out the courses and distances) and did therein and thereby order and appoint the said *Barnet*to make and maintain 7 chains, 87 links of the upper end of it, and *Miller*the same quantity at the lower end. That *Miller*having neglected to make his just part or proportion of said fence,- *Barnet*at the said several times when, &c. entered into the close, &c. to make the said partition fence in the place so appointed by *Bartles*and *Longstreet,*and did make it conformably to said appointment and pursuant to the statute, and did dig and open the ground and put that fence and no other, and in so doing, did no unnecessary damage, &c. which are the same trespasses, &c. and concludes with a verification, &c.

To this 3rd plea *Miller*replied that he ought not to be barred, &c. because the close mentioned, on the 2nd *October*1815, was the close and freehold of *Henry Miller,*sen. and before the day, &c. viz. on the 15th *April*1815, he demised it to the plaintiff for one year, and from year to year so long- as they should please, by virtue of which *631demise lie entered and was possessed thereof; and further, that on the 2nd *October*1815, and for a long time before, there was and had been a partition fence between said close, and the adjoining land of said *Barnet,*in the plea mentioned, and that the place so fixed and appointed, by *the said *Bartles*and *Longstrreet,*where the said division or partition fence should be made, is not the same place where the said fence was and had been, but another and different place; concluding with verification &c.

To this replication, the defendant filed a demurrer, and the plaintiff joined in demurrer.

*Wall*in support of the demurrer;

referred to *Pat.*336, sec. 3, and argued; 1. That the replication was no answer to the plea. That the object of the statute was to create a tribunal, with authority to determine where division fences should be, when the owners of the land could not. 2. That-the replication was faulty, for duplicity; setting up first, the freehold in *Henry Miller*sen., and second, that there was an ancient fence in the place.

*Ewing*in answer,

maintained; that the township committee had not authority to interfere where there was a fence, but only where no partition fence had ever been made. That the power given was to *place,*not to *remove*the fence. That the plaintiff here, was merely a tenant, and that the notice must be given to the real owner. *Coxe*53. That the replication was not double, but if it were, the demurrer must be special: and the replication wTas amendable.

*Wall*replied;

that the township committee only fix the fence, but do not settle any right to the land; that if they act incorrectly, the party has two remedies, one by certiorari to remove their proceedings, the other ejectment; but that advantage could not be taken of it in this collateral way.

(a)

*Corlis vs. Little, 1 Gr. 229.*See *Chambers vs. Matthews, 3 Har. 368.*

Kirkpatrick C. J.

expressed his view of the case as follows. This is an action of trespass for breaking and *632entering the plaintiff’s close, and treading down the grass grain there growing, &c.

The defendant pleads several pleas; and in the third; which is the one now under consideration, she says; that she and the plaintiff are possessed of certain tracts of land adjoining one another in the township of *Teiulcsbury ;*that a difficulty had arisen between them, touching the placing of the partition fence between the said tracts; that she had applied to two of the township committee thereupon, who had fixed the line where the same should be made, and designated the particular part ^thereof, which each of them should make; that the plaintiff, notwithstanding, had neglected and refused to make his part thereof; and that therefore, she entered into and upon the said close, in which &c. to make the same, as by the provisions of the statute in that case made and provided, it was lawful for her to do, treading down as little of the grass and. corn there growing, and doing as little damage as was possible ; and that this was the only breaking and entering of which the plaintiff complains.

To this plea- the plaintiff replies, that at the time when &c. and long before, there was and had been a partition fence between the said tracts, which designated and bounded the possession of the parties respectively; and that the line so, as aforesaid, fixed by the said township committee-men, was not in the same place where the said fence stood, but in another and different place. And to this replication there is a demurrer and a joinder in demurrer.

The only question raised at the bar, on those pleadings, is, whether where there is a subsisting fence, designating the possession of the parties, the township committee-men have authority, under the statute, to fix a place or line for the partition fence, different from.that where such subsisting fence stands.

The statute speaks of cases where difficulty may arise touching the *placing of*a particular fence. Now this phraseology is not, strictly speaking, applicable to a case where the partition fence is already *placed.*No difficulty can arise about doing that which is already done. If the statute had contemplated such a case as this, it would have *633spoken, not of *placing,*but of *altering, changing, straightening,*or *placing upon the true line,*such fence.

Besides, the reason of the thing is against the authority. A citizen, upon general principles, is not to be dispossessed of his freehold by the opinion of two township committeemen, nor by the opinion of any other men, unless it be a lawful jury of the county. This principle too, has been already settled in the case of *The State*v. *Ford*and *Baldwin, (Coxe*53) There, because the surveyors altered the line where the fence stood, and which had been acquiesced in for a long time, the court say, *that under the pretence of settling a line fence, they had undertaJcm to try a title to lands;*and therefore quashed their order. Therefore upon principle, as well as upon precedent, I think the demurrer must be overruled.

*Kirktatrick C. J. and Rossell J.

Thejudgmentof the court goes upon the ground, that the township committee, under the statute, have no authority to interfere in cases where a partition fence has already been made, and direct it to be placed elsewhere.

Southard J.

expressed no opinion, having formerly been of counsel with the plaintiff.

Demurrer overruled.