Thayer v. Wright

4 Denio 180

Opinion

By the Court, Bronson, Ch. J.

The plaintiff was a trespasser when he built the fence on the school house lot; and the defendant, as a trustee of the school district, had an undoubted right to remove the fence. His only fault is, that he suffered the school children to be annoyed with the nuisance for two months before it was abated.

If the defendant had converted the rails to his own use, I am not prepared to admit that this action could be maintained. A fence is a fixture; and belongs to the owner of the soil. If a man knowingly enter upon the land of another, without permission, and build a house or a fence, the erection belongs to the owner of the land; and he may pull it down, and dispose of the materials as he pleases. Such are my present impressions. (See Walker v. Sherman, 20 Wend. 646; Goddard v. Bolster, 6 Greenl. 427; Washburn v. Sproat, 16 Mass. 449; Amos & Ferard, Fixtures, 241, note.) But it is not now necessary to settle that question; for the defendant did not convert the rails to his own use. He removed and laid them into a fence, at the place where the fence ought to be. And he did nothing to prevent the plaintiff from taking and carrying away the rails, if he had chosen to do so. The error of the justice has been corrected by the common pleas.

Judgment affirmed.