Clowers v. Sawyers , 38 Tenn. 156 ( 1858 )

Wrisht, J,,

delivered the opinion of the Court.

This was a suit by warrant before a justice of the peace, against Clowers, for removing the rails- of a fence claimed by the plaintiffs; and on the trial in the Circuit Court judgment was rendered against him, and he has appealed in error to this Court.

The lands of the parties adjoined, and there was much proof as to where the true dividing line between them was, and on which side of the line the fence was, or whether it was a common fence between them, on a common dividing line. In this state of the facts the Circuit Judge charged the jury that the main question was, where the line between the parties ran and upon whose side of it was the alleged trespass committed. If the fence was on the defendant’s side of the line he had a right to move it, and do what he pleased with it; but if upon the plaintiff’s side he had not the right to interfere with it. If, however, the jury should find from the facts in the case, that the fence was made and kept up jointly by the defendant and the plaintiffs, or those under whom they claimed, immediately upon the line between them, then the defendant had the right to remove his portion of it upon giving to the plaintiffs, or their guardian, reasonable notice of his intention so to do.

There is no error in this charge of which Clowers can complain. It is certainly favorable enough to him. The Court did not undertake to tell the jury where the true line was, nor that, in its ascertainment, they were to look alone to the deeds of the parties, any more than to acts of acquiescence and possession. It was left to them to ascertain the line, upon all the facts; and no special instructions as to the force of the deeds and possession were asked, and the error assigned by the counsel of the plaintiff in error does not arise in the record.

Judgment affirmed.