{
  "id": 8691883,
  "name": "DANIEL WENTZ vs. BENJAMIN FINCHER & AL.",
  "name_abbreviation": "Wentz v. Fincher",
  "decision_date": "1851-08",
  "docket_number": "",
  "first_page": "297",
  "last_page": "299",
  "citations": [
    {
      "type": "nominative",
      "cite": "12 Ired. 297"
    },
    {
      "type": "official",
      "cite": "34 N.C. 297"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "ocr_confidence": 0.489,
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    "simhash": "1:d56328063be29008",
    "word_count": 748
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  "last_updated": "2023-07-14T19:40:22.332414+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "DANIEL WENTZ vs. BENJAMIN FINCHER & AL."
    ],
    "opinions": [
      {
        "text": "Nash, J.\nThe charge of his Honor affirms a principle, which, we think, cannot be maintained. The instruction to the jury was, that \u201c 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.\u201d 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\u00ae, 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 th\u00e9 defendant's had brought an action of ejectment against th\u00e9 plaintiff for the land, they Would liaVe recovered it, upon 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.\nThere was error in his Honqr\u2019s charge, for which the judgtnent is reversed and a venire de nono awarded.\nPur Cunt am. ] Judgment accordingly.",
        "type": "majority",
        "author": "Nash, J."
      }
    ],
    "attorneys": [
      "Osborne and Hutchinson, for the plaintiff.",
      "Wilson, for the defendants."
    ],
    "corrections": "",
    "head_matter": "DANIEL WENTZ vs. BENJAMIN FINCHER & AL.\nWhen 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\u00bb been effected by a breach of the peace.\nThe case of Murchison v. White, 8 Ire. 52 cited and approved.\nAppeal from the Superior Court of Law of Mecklenburg County, Special Term, June, 1851, his Honor Judge Settle presiding.\nThis 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.\nThe defendants then offered in evidence deeds covering the land, of which the plaintiff had taken possession, and-\u00f3n which he had built the fence, and showed that he had no title thereto.\nUpon 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 \u2014 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 law the fence was their property, and the plaintiff) consequently, could not recover.\nThe 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.\nVerdict for the plaintiff, and the defendants appealed.\nOsborne and Hutchinson, for the plaintiff.\nWilson, for the defendants."
  },
  "file_name": "0297-01",
  "first_page_order": 305,
  "last_page_order": 307
}