I concur in the action of the majority in reversing this case, but think it should be remanded for retrial, rather than rendered. The trial court made no definite finding respecting the title to the fences constructed by Haley on a portion of the premises in controversy. He merely found that Elza did not purchase the same from Haley. The evidence respecting the title to these fences does not seem to have been fully developed, and in any event it is wholly insufficient to warrant this court in undertaking, as a matter of law, to say that the title thereto is shown to have been vested in Elza. I think the action of the majority in undertaking to dispose of the issue of title to these fences is improper, and a matter which should be referred to the trial court for determination.
I here now enter my dissent to the order finally rendering the cause. *Page 636