Opinion delivered July 2, 1874, by
Unless the plaintiff in error occupied lands up to the line of the adjacent owner he was under no legal obligation to put his fence on the line: Painter v. Reese, 2 Barr, 126; Dysart v. Leeds, 2 Barr, 488; Potts v. Everhart, 2 Casey, 493.
He had a right to set his fence in on his own land, and throw open to the public the portion lying between the line and his fence: Painter v. Reese, supra; Rohrer v. Rohrer, 6 Harris, 367. By so doing he was relieved from a continuing obligation to assist in the maintenance of a fence on the line. If the boundary fence had previously been built at the joint expense of the adjoining owners, it gave the plaintiff in error no right to remove any portion of it, on his withdrawing from an occupancy of the land, uj> to it. The fence had not only become common property but was such a dedication of the materials composing it, to the realty, that he could not remove the portion made by himself, .without the consent of the other, and for such a removal he would be liable in trespass: Stover v. Hunsicker, 11 Wright, 514.
The court then committed no error in denying the right of the plaintiff in error to remove a portion of the line fence. He was liable for the damages which the defendant thereby necessarily sustained.
A duty, however, was imposed upon the defendant in error, to protect his crops, by the building of proper fences within a reasonable time. If he neglected this duty, he cannot hold the plaintiff liable for damage done by the cattle of others: Gregg v. Gregg, 5 P. F. Smith, 227.
In protecting his crops the defendant in error had no right to extend his fence over on the land of the plaintiff in error a few feet. By so doing he in turn became a trespasser: Dysart v. Leeds, supra. If he so extended it, the plaintiff in error had an undoubted right to throw down that portion of the fence and remove it from his land. This being a lawful act, no action would lie against him therefor, although his motive thereto may have been malicious: Jenkins v. Fowler, 12 Harris, 308.
The court appears not to have discriminated between the act of the plaintiff in error in removing the line fence, and his removal of the other fence subsequently built by the defendant in error. The learned judge appears to have ignored the testimony of both Levi Myers and of the *294plaintiff in error. They both testify that no portion of the fence built by the defendant in error was removed, except that which extended over on to the land of the plaintiff in error. If the jury should find such to be the fact, there could be no recovery therefor. This must not be confounded with a case where the fence is on the very line, and the rails of one extend a few inches beyond the line fence. Hence it was error for the court to take this from the jury and say to them “ after all, the question is simply one of damages. ” As to one branch of the case there was dearly a question of the right to recover.
In the absence of specific instructions having been asked for, we cannot say there is error in the second assignment; but as we have shown, the first, third and fourth are sustained.
As we have not been furnished with a copy of the lease, we are unable to determine what property the defendant in error had in the rails composing the fence, or in the growing crop, and therefore give no opinion on the right of the defendant in error to recover for the whole property taken or destroyed.
Judgment reversed and a venire facias de novo awarded.