Murray v. Van Derlyn , 24 Wis. 67 ( 1869 )

Paine, J.

The single question presented is, whether, in an action for a trespass before a justice of the peace, an answer setting up that the defendant was the owner of a lot adjoining that of the plaintiff on which the trespass was alleged to have been committed, and that the alleged trespass consisted in taking away the division fence between the lots, and that the fence belonged to the defendant, and that he had a right to take it away, raises a question of title to real estate, which, if the proper bond is tendered, deprives the justice of the power to try the case. We think it does.

A fence is a part of the realty. A division fence may belong entirely to one owner, and he may have a right to take it away. If he does own it, he owns it as a part of his land. If the owner of the adjoining tract claims title to it, he claims it as a part of his land. And, although there may be no dispute between them in respect to their respective titles to the soil itself, yet a dispute as to the title to the line fence raises a question as to the title to real estate.

The proper bond having been tendered, the justice had no authority to proceed with the case, and his judgment was properly reversed by the circuit court.

By the Court. — The judgment of the circuit court is affirmed.