Kimball v. Adams

• Decision Date: 10 May 1881
• Parties: KIMBALL v. ADAMS AND OTHERS.
• Court: Wisconsin Supreme Court

52 Wis. 554

9 N.W. 170

KIMBALL

v.ADAMS AND OTHERS.

Supreme Court of Wisconsin.

Filed May 10, 1881.

Appeal from circuit court, Portage county.

July 24, 1879, the defendant Glinsky obtained a deed and the title of the 40 acres of land in question, upon which there was at the time a fence standing near the line between the 40 and the plaintiff's land, and nearly parallel therewith. The fence was removed in November, 1879, by Glinsky, with the aid of the other defendants, and converted to other purposes, and thereupon this action was brought, in justice court, to recover the value, on the ground that it was built by the plaintiff on what he supposed to be the line between his land and the 40, and hence that it was personal property. The defendants pleaded title to the 40 in Glinsky, claiming that the fence was upon and a part of it, and defended on that ground, and that he bought it in good faith as a part of the land. The court submitted the case to the jury on the theory that it was an action of trover, and that the plaintiff could recover even if the fence was by mistake built upon the 40. The court expressly refused to instruct the jury to the effect that, if the fence was on Glinky's land, then it became part of the realty, and the plaintiff could not recover, especially if he was a bona fide purchaser. The jury returned a verdict for the plaintiff, which the court refused to set aside and grant a new trial, and judgment was entered thereon accordingly, from which this appeal was taken.O. H. Lamoreaux, for respondent.

Jones & Sanborn, for appellants.

CASSODAY, J.

By the plea of title, the giving of the bond, and filing the proceedings and papers in the office of the clerk of the circuit court, that court became possessed of the cause and had the right to proceed therein the same as if it had been originally commenced in that court. Section 3622, Rev. St. There is no pretence that the plaintiff built the fence under or in pursuance of any agreement for its removal, or that it should remain personal property. The building of a fence upon land as a permanent structure, in the absence of any such agreement, would necessarily convert the material of which it was built from personal property into realty. Murray v. Van Derlyn, 24 Wis. 67;Thayer v. Wright, 4 Denio, 180;Mott v. Palmer, 1 Com. 564. Rails laid into a fence upon land are a part of the freehold, even though not otherwise attached to the land than by their weight. Smith v. Carroll, 4 G....