NICHOLAS WHITFIELD v. JOSEPH BODENHAMMER.

Two neighbors haviug- agreed to build a rail fence upon the boundaries between them, it was also agreed that the eastern half of it should be . built by the plaintiff and the western by the defendant. In building his part the defendant, inadvertently or to g-et a better location, placed it altogether upon the plaintiff’s land: H>dd that he was not liable to the plaintiff in an action of Trespass guare clausum fregit, for subsequently removing his part of such fenoe.

Held also, that neither the agreement between the parties about the building of the fence, nor a subsequent notice given by the defendant to the plaintiff of his intention to remove it, were (under the circumstances) evidence of license by the plaintiff of a removal.

Trespass Q. O. E., tried before Warren, J., at Spring Term, 1867, of the Superior Court of Forsyth,

The evidence showed that the parties owned adjoining-lands and agreed to build a rail fence upon a boundary line between them running- East and West, the eastern half to be built and maintained by the plaintiff', and the -western half by the defendant; also that the defendant, inadvertently or in order to secure a better location for his part, placed it entirely upon the plaintiff’s land. Subsequently the defendant gave the plaintiff notice in writing that he intended on a, certain day to have his land surveyed and to set his fence upon his own. land, and that he might attend and see it done. On that day the defendant attended but no surveyor came, whereupon another day was appointed. Before that day the defendant removed his part of the fenoe. On the second appointed day the parties met and surveyed the whole East and West line on which the fence had been placed.

In the court below his Honor instructed the jury that there was no evidence of license by the plaintiff, and that if the plaintiff had proved that the defendant had trespassed upon his land, he was entitled to their verdict.

*363Verdict for the plaintiff; rule for a new trial; rule discharged; judgment and appeal by the defendant.

T. J. Wilson, for the appellant.

1. There was evidence of license. Harrison v. Parlcer, 6 E., 164; 2 Saund. Rep., 113, note c; 3 Ire., 374.

2. Defendant had possession of fence, or was tenant in common, and in either case not liable in trespass. McPherson v. Bequine, 3 Dev., 153.

No counsel in this court, contra.

Pearson, C. J.

An unfortunate misunderstanding between two neighbors has originated a “new point” for the decision of the courts, and resort must be had to the analogies of the law.

The attention of his Honor seems to have been confined to the question, whether there was any evidence that the plaintiff had given license to the defendant to remove the fence. We concur with him in the opinion that there was no evidence to support this allegation; for it must be taken as a matter of course that the plaintiff objected to the removal of the fence.

But in deciding a case the court is bound to look at the whole record, and the whole case made . by the record and the evidence; and it is manifest that the plea “ not guilty ” of the trespass complained of presents the broad question: “ Upon the facts stated, can the plaintiff maintain an action of trespass vi et armis, quare clausum fregit ?”

We are of opinion that the evidence set out by' his Honor did not make a case upon which the plaintiff could maintain the action, and that his remedy, if he had any cause of complaint after the defendant had given notice for the purp ose of putting an end to the agreement in regard to the dividing fence, was by action on the case in assumpsit.

*364By the agreement the fence, a worm fence,, was to be built on the dviding East and West line. The rails were to be laid so that one-half of the ground-rail should be on plaintiff’s land, and the other half on that of the defendant Of course in such arrangements exactness is-not expected or required; and it so happened that for some poles near the western corner, the defendant, it being his part to make that portion of the fence, either because he did not know precisely where the line was, or in order to get a better location for the fence, placed the ground rail “ altogether over on the plaintiffs land.” To this the plaintiff made no objection, and the legal effect was, that the defendant acquired possession Up to the turn of the fence; or, at-all events, acquired a joint possession with the plaintiff, just as he had in regard to that part of the land where the fence’ was exactly on the line. Whether he had an exclusive or a-joint possession, it is not necessary to determine; for, supposing it to be a joint possession, trespass vi et, armis does-not lia

If one enters into the house or upon-the land of another by his permission, and afterwards does an act inconsistent with the agreement or license under which he entered, he cannot be treated as “ajuespasser ab-initio.” That fiction is confined to cases when the entry is allowed by law, as upon an entry into a tavern or store, so that analogy is against the plaintiff Six Carpenters' case, Coke’s Eeps. If a tenant at will or from year to year, after notice given, removes a fence or building which he had put on the land, trespass vi et armis cannot be maintained. The remedy is-an action on the case in the nature of a writ of waste; so-that analogy also is against the plaintiff.

By laying the fence with his own rails, the defendant acquired either an exclusive or a joint possession of the land on which his rails were put, and of the land enclosed by the fence.

*365Taking it either way, the plaintiff had not such a possession as enables him to maintain trespass vi et armis, unless the plaintiff can treat the defendant as a trespasser ah initio, which, as we have said, he cannot do.

There is error.

Per Curiam. Judgment reversed; Venire de novo.