#### DANIEL WENTZ *vs.*BENJAMIN FINCHER *& AL.*

When a man built a rail-fenco upon a piece of land, to which ho 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 ha» been effected by a breach of the peace.

The case of *Murchison*v. *White,*8 Ire. 52 cited and approved.

Appeal from the Superior Court of Law of Mecklenburg County, Special Term, June, 1851, his Honor Judge Settle presiding.

This was 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-ón 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-, in *298law 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 had 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 the plaintiff.

*Wilson,*for the defendants.

Nash, J.

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 wrong doer, 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 lana of the defendants, without their consent. It become®, 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 thé defendant's had brought an action of ejectment against thé plaintiff for the land, they Would liaVe recovered it, up*299on the admitted facts of the case, and, with it, al! 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,*8 Ire 52. There cannot be two adversary rights, existing in different persons at the same time.

There was error in his Honqr’s charge, for which the judgtnent is reversed and a *venire de nono*awarded.

Pur *Cunt am. ]*Judgment accordingly.