#### Jabez Burrell *versus*David Burrell.

It is not a trespass for the owner of land to take away the fence separating it from the land of another, for the purpose of rebuilding the fence of other materials. Where owners of adjoining lands establish a division fence varying from the line described in their respective title deeds, and each has held and occupied up to his side of the fence, claiming to hold accordingly, for twenty years, neither can maintain a possessory action against the other.

This was an action of trespass for breaking and entering two several closes of the plaintiff in *Sheffield,*and taking away two several parcels of fence thereon standing.

*270The cause was tried on the general issue, at the last May term in this county, before *Jackson,*J., from whose report of the trial it appears that one of the fences was on the dividing line between two lots of land owned by the parties respectively. The trespass complained of was the defendant’s removing a part of that fence, which was made of rails. The defendant produced evidence to show that he built this same part of the fence about twenty-three years ago, and had ever since been accustomed to repair it, as his part of the division fence; and that, at the time in question, he removed the rails in order to make a stone-wall there ; which he built accordingly in the following year, placing it rather [ * 295 ] * nearer to his own land than the place where the rail-fence had stood.

The judge instructed the jury that, if they believed the facts to be as above stated, they should find a verdict on this count for the defendant; and they returned a verdict for him accordingly.

The trespass complained of in the other count was the removing another parcel of rail-fence, standing on or near the dividing line between two other lots owned by the plaintiff and defendant respectively, and entering on a small piece or gore of land claimed by the plaintiff, and adjoining to said fence on the south side thereof. It appeared that the defendant had owned the north lot about thirty years. One *Ashley*previously owned the adjoining south lot, and devised it to one *Dutchen,*who owned it in 1802, and before the plaintiff had any title or claim to it. The fence between the two lots, which passed through a wood or swamp, did not run in a straight line, but was bent or inclined to the northward, so as to include in the south lot about two acres more than would have been included by a straight line.

The defendant produced evidence to prove that the said *Ashley,*in 1764, when he bought the south lot, caused it to be surveyed, and ran the dividing line straight, in the place where the defendant has now built the fence ; that the said *Ashley*never claimed any land north of that line, but always declared that this was his boundary ; and particularly in 1792, he caused the line to be run anew, in the same place, between him and the defendant, and then de dared that he would not claim any thing north of that line; also that the said *Dutchen,*after he owned the south lot, claimed to own to the same line, and agreed with the defendant, in 1802, to build a new fence on that line, to divide their lots; but the fence was never built by them.

The plaintiff did not deny that *Ashley*and *Dutchen*had agreed with the defendant upon the course and place of the division line as above stated ; but produced evidence to prove that the defend *271ant, in the years 1809, 1810, and 1811, had confessed or admitted that he had not a good title to the *land in [ * 296 ] question. It was understood that the plaintiff had purchased the said south lot of the said *Dutchen,*but the deed was not produced. The plaintiff produced a deed of one *Abraham Root,*made in January, 1810, by which the said *Root*sold, re leased, and quitclaimed, a certain piece of land to the plaintiff, which, as he contended, included the premises in question.

The defendant produced a deed of the same *A. Root,*made in March, 1764, to the said *Ashley,*for the conveyance of about two hundred and fifty acres of land, including, as the defendant contended, all that *Root*ever owned or claimed in or near the said south lot. And it appeared that *Ashley*immediately entered under the said deed, and always claimed to hold, in virtue thereof, all the lands south of the said lot, which was afterwards purchased by the defendant; and that the premises, so supposed to be conveyed by said *Root*to the plaintiff, had never been occupied by said *Root*after 1764; but had been included within the south lot, and occupied therewith, as before mentioned.

The judge left the whole evidence to the jury, and instructed them that, if it had been understood and agreed between the defendant and the said *Ashley*and *Dutchen*respectively, that the dividing line between their said lots was in the place now contended for by the defendant, and that the defendant owned all the said land, which was occupied by them on the north of said line, — this was evidence of a seisin and possession thereof by the defendant; and that neither the said *Ashley*nor *Dutchen*could, under such circumstances, make a valid conveyance thereof to any other person; and that a boundary line, when agreed on without fraud or mistake by the owners of adjoining Ipts, would bind both parties, and their respective heirs or assigns, whether such boundary were marked by a fence on the line, or in any other manner; and, further, that, if the defendant was seised of the land in question, claiming it as his own, the plaintiff could not maintain his action on this count, and the jury should find a verdict thereon for die defendant.

*The jury found a verdict accordingly for the de- [*297 ] fendant on this count also ; and the plaintiff moved for a new trial, on account of the said opinions and directions of the judge

*Hulbert*and *C. Dewey*for the plaintiff.

*Ashmun*and *Whiting*for the defendant.

Parker, C. J.,

delivered the opinion of the Court, *(a)*

*272There can be no question of the correctness of the verdict upon the first count. The action is trespass; and a possession, at the time the act supposed to be a trespass was done, must be proved, or the action cannot be maintained. Now, there was evidence of a possession by fence in the defendant for more than twenty years before the action was brought; and that the part of the fence, the removal of which is complained of, had been repaired by him during that time; also that the new fence or stone-wall was erected within the line on which the old fence stood.

The only question which could exist at the trial was, whether the facts there testified were true; and the jury having declared that they were, the verdict for the defendant was a necessary legal consequence.

There is nothing in the report from which an entry on the plaintiff’s land can be inferred, unless such entry was necessary for the purpose of taking down the fence, in order to rebuild it, which would not be tortious. The part of the fence assigned to the defendant to keep in repair was his property, so far at least that the removal of it, for lawful purposes, could not make him a trespasser; and we do not think there was any joint-tenancy, or tenancy in common, of the materials of which the fence was composed.

There is not much more question upon the other count. Two borderers, having a known line between them, conformable to their title deeds, have, in consequence of the irregularity of the ground, acquiesced in a fence not corresponding with that line ; but, nevertheless, neither party claims to own on the other side of the line, established by the deeds and by the express acknowl [ * 298 ] edgment as late as 1802, of the * person then in pas session of the lot now held by the plaintiff, and under whom he derives his title, and in conformity with a survey made in 1764, by *Ashley,*the then owner, and again in 1792.

The line described in title deeds must always be considered the true original line between the owners of contiguous lots. This is generally ascertained by fence; but the fence is only evidence of the direction of the line, unless it is referred to in the deeds as a monument. Where parties have established a fence varying from the line described in the deeds, and each party has held and occupied up to his side of the fence, claiming to hold accordingly, for twenty years, neither can maintain a possessory action against the other. And, indeed, such act of ownership and acquiescence might be sufficient evidence of title in actions of a higher nature, especially if any doubt should exist as to the place and course of the line described in the deeds.

*273Bat where the parties have agreed upon a fence variant from the line, avowedly for convenience, and still have continued to claim according to the true line, neither party acquires a title, or even a right of possession, against the other, merely on account of the fence.

It was therefore a question of fact properly submitted to the jury, whether, under the circumstances of these parties, and the prior owners of the land, by whose acts the present owners are bound, the fence was to be considered as limiting the claims of the proprietors on either side, contrary to the boundary established by their supposed titles ; and we have no doubt the jury have decided rightly upon the question.

*Judgment according to the verdict*

(a)

**Note. — *Dewey,*7., having been of counsel for one of the parties, did not sil m the hearing of this cause.