| Ala. | Jan 15, 1856
There can be no doubt, that, if a fence is a partition fence between two different owners, it confers the right on either to' make the'necessary repairs, and, as an incident to that right, gives authority to each to
So, also, if a part of the fence was entirely on the land of one of the proprietors, still, if it was recognized as a partition fence by both parties, it would confer the same rights as if it were in fact so. The recognition would operate as an estop-pel in pais; and neither could complain of any act done by the other, which would have been lawful, had the fence been on the division line.
But the right to repair would not authorize one to destroy. Neither, in our opinion, would the right to repair a fence authorize the erection of an entirely different structure; and the statute (Olay’s Digest, 241, § 4) would not authorize any entry on the lands of another, which was inconsistent with the rights that statute gives. In other words, if a gate was not only used as such, but recognized also as part of a division fence, th¿ right to repair it in the one capacity, would not authorize its destruction in the other. Although either party could repair it as a fence, neither could destroy it as a gate; and if the entry was made for the latter purpose, the statute would afford no protection.
The charge of the court was directly in conflict with the principles we have expressed, as it instructed the jury, in effect, that the defendant below might destroy the structure as a gate, in order to repair it as a fence.
Judgment reversed, and cause remanded.