Kimball v. Adams , 52 Wis. 554 ( 1881 )

The following opinion was filed May 10, 1881:

Cassoday, J.

By the plea of title, the giving of the bond, and the filing of 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, R. S.

There is no pretense 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 Coms., 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. Greene, 146; Boon v. Orr, id., 304; Mitchell v. Billingsley, 17 Ala., 391.

The mere fact that the fence in question was built by the plaintiff upon lands not his own, by mistake, did not prevent its becoming a fixture to the real estate as soon as it became attached to the soil. Seymour v. Watson, 5 Blackf. (Ind.), 555. Mr. Ewell says: “ With respect to erections and annexations made by a stranger, with his own materials, upon the soil of another, without his consent, the rule of law ... as between the owner of the soil and the one making such annexations, quite uniformly applied, is, that the owner of the materials loses his property, because he is presumed to have voluntarily parted with it, or to have intended it as a gift to the owner of the soil.” Page 57. To the same effect are the following authorities: Crest v. Jack, 3 Watts, 238; First Parish v. Jones, 8 Cush., 189; Goddard v. Bolster, 6 Me., 427; Huebschmann v. McHenry, 29 Wis., 655. The fence in question having become a fixture, and the title to it having passed to the defendant with the title to the forty, it follows that he had the legal right to ¡Dull it down and dispose of the material as he pleased. This view was taken of the question by Bronson, C. J., in Thayer v. Wright, 4 Denio, 181, and we regard it as good law.

By the <7cwA — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

A motion for a rehearing was denied June 22, 1881.