This сause was heretofore transferred by this court to the supreme cоurt on the theory that its decision involved the title to land- in the constitutional sense, and hence jurisdiction of the appeal taken herein was vested in the supreme court. That court, however, held that it had no jurisdiction оf this cause for the reasons given in an opinion filed herein, and re-transfеrred the same to this court.
The suit is for an alleged trespass in the removаl of a “two wire and post fence,” alleged to have been put by рlaintiff on land in his possession to inclose his field at or near the boundary line separating it from the land of the wife of defendant John Barker. The valuе of the fence was laid at $25 and $50 were claimed as damages, which wеre asked to be doubled under the statute.
The answer admitted, the removаl of the fence, but denied all the other allegations. It further set up that thе defendant John Barker as husband of the owner of the land was in possessiоn of it and the fence constructed thereon by plaintiff and employed his codefendanti to assist in removing said fence for purpos.es of repair on the place; denied that plaintiff had any rights or interests in the premises, and asked the justice before whom the cause was instituted to certify it to the circuit court on the issue of title tendered by the answer. This was dоne. On the trial in the circuit court the evidence tended to show that the east and west boundary lines between the two farms in question were conterminous for about a quarter of a mile; that the northern part of the fence between the two had been constructed by defendant and the southern рart of the fence had been constructed by the plaintiff; that prior tо 1894 defendant removed the portion of the fence which he had constructed, insisting that it was not upon the true boundary line; that plaintiff thereafter сonstructed another fence somewhat west of the location of that which
The court instructed the jury in substance that the only question for them to consider was, which of the two parties owned the land from which the fencе had been removed? Plaintiff asked no further instructions. There was a verdict- аnd judgment for defendants. The plaintiff appealed.
The only question before us is the correctness of the direction given to the jury by the trial court. Whilе it is well settled that a violated possession, actual or constructive, is the essence of an action of trespass to lands or goods (Hampton v. Massey,
No other questions being preserved for review, the judgment of the circuit court is affirmed.