<p>Before Butler, J. at Spartanburg — Extra Term, 1841.</p> <p>This was an action of trespass to try title to a small slip of land of 50 yards length, and one link in breadth. Or it might better be characterized to say, that it was to try the right to a fence. Both parties claimed under a Mr. Bearden, who had divided a tract of land between his two sons, John and Ben. The plaintiff claimed under Ben, and the defendant under John, through intermediate owners of the land. In 1823, Wynne Bearden, the son of Ben, run a fence from the road to the opposite side, on what he supposed was the dividing line. In 1826, the defendant, who was then the owner of the other part of the land, petitioned to Wynne Bearden, to join fences. Permission, however, was refused, and Picken-pack, the defendant, to enclose a new ground, run his fence obliquely till it struck Bearden’s, fence, at a ground pole; and thence run it parallel with the other to the road, interlocking all that way — so that, at one time, there were two fences standing. One disappeared, and the question was, whose fence had been left, as the common dividing fence between the parties. Dr. Smith, the plaintiff, who became the owner of his land (the Ben Bearden part) in 1830, contended that the original fence, put up by Wynne Bearden, was left, and that defendant had joined to it— whilst the defendant contended that plaintiff had taken down his fence, and joined to the one put up by him (defendant) in 1826. The evidence was satisfactory that the plaintiff had joined to defendant’s fence, and had taken his away sometime in 1826, or 1827. The jury so found, for they found for the defendant. According to the finding, the case stands thus — for 14 years, defendant has had his fence on a small slip of land, originally belonging to plaintiff, believing at the time he made the fence it was entirely on his own. The jury were instructed that the land thus covered, or occupied by defendant’s fence, became his by the statute of limitations, and that he had a right to the fence on the land. The question arose upon the defendant’s right to take down the fence which he had put up. The plaintiff forbid him taking it down, and, by threats of violence, drove defendant’s hands off while they were moving the fence, in the presence of their master, and in obedience to his orders. Before the defendant undertook to move his fence, he sent plaintiff word that he was going to do so, with a view of opening a lane for the neighbors to pass through. The action was brought to recover damages for taking down a few rails. Under these circumstances, and if the land is plaintiff’s, he had a right to recover something, but if it was defendant’s, he ought to have failed in his action.</p> <p>On one occasion, plaintiff said “they were going to join fences,” “or he was going to join his fence to defendant’s,” but there was no evidence that defendant had ever consented to it. The ground that it was a division fence by the consent and agreement of the parties, was irreconcilable with the ground assumed by plaintiff, that the fence was entirely his own, and that he had permitted defendant to use it at sufferance. The presiding Judge’s opinion was in conformity with the finding of the jury, that defendant was justified in taking away his own fence from off his own land.</p> <p>The plaintiff appealed on the following grounds.</p> <p>1st. Because his Honor erred in charging the jury that if the defendant built the fence which he removed, and was the subject of the trespass, he had a title by the statute of limitations, when it was admitted that the fence was on the plaintiff’s land, and the defendant only claimed to have built the fence, and held it four or five years, when the plaintiff joined his fence to it, and used it as the enclosure of his field ever since, and therefore, if defendant assented to it, he did not hold adverse to plaintiff, and if he objected to it, the plaintiff, held the fence adverse to the plaintiff’s claim, and in either point of view, there was no statutory title in defendant.</p> <p>2d. Because, whether the defendant consented to the joining of fences, was a fact upon which there was some evidence, — yet his honor withdrew that question from the jury.</p>
