dissenting:
This action of trespass was brought on February 8, 1898. In their statement filed on the same day the plaintiffs alleged that the defendant, “ from the first to the sixth days of December, 1897, or near that time, with force and arms and without authority, did enter upon the plaintiffs’ land and then and there did wilfully and maliciously remove top wires from several posts of the fence which the plaintiff had recently built, and in other ways did injure and damage said fence.’’
In January, 1899, the plaintiffs gave notice that upon the trial of the case they would claim damages up to the date of trial. It appeared from the plaintiffs’ testimony that the fence in question was completed in the latter .part of November, 1897, and that-the trespass complained of in the statement was committed about a week or ten days afterwards.
I concur with my brethren in the conclusion that there was reversible error in permitting the plaintiff to prove that on March 7, 1898, after the suit was brought, the defendant completed the demolition of the fence and rebuilt it upon what the *182plaintiff claimed to be his land. A notice under the act of May 2, 1876, enables the plaintiff to recover damages down to the date of trial in case of a trespass of a continuing nature, but cannot be used to bring in separate, subsequent causes of action arising between the issuing of the writ and the trial, even though they be trespasses of the same kind: Hileman v. Hileman, 172 Pa. 323; Pantall v. Rochester & Pittsburg Coal & Iron Co., 204 Pa. 168.
But I am unable to concur in the conclusion that it was the duty of the court to declare as a matter of law that the plaintiff could not maintain trespass for the injury declared on in his statement of claim. Whether such conclusion would be warranted if the point quoted in Brother Beaver’s opinion embraced all the relevant facts, is a question which I deem it unnecessary to discuss, for I am unable to agree that it embraced all the relevant facts.
The fence in question was built by the plaintiff to enclose the land claimed by him to be embraced by his title. It included a narrow strip of land, which for part of its length was part of an old road, which it was claimed by the plaintiff had been abandoned, and for the other part of its length lay to the south of an old fence which for many years prior to 1887 had bounded the possessions of the parties. If the part of the strip which “ lay out to the old road,” as the witnesses expressed it, was embraced within the plaintiff’s title, how can it be said that the plaintiff obtained possession of it unlawfully by enclosing it by a fence, when the old road ceased to be a public highway ? UJdou what theory can it be claimed that the defendant had a right to destroy that portion of the fence, and would not be liable in trespass for so doing ? This has not been made clear to my mind. But aside from this, there was evidence from which the jury were warranted in finding that both parties claimed that the old fence was not on the line between their properties, although they did not agree as to the true location of the line.
The plaintiff testified: “Well I went up there to fix my share of this fence. I could not keep his stock out and I went up there to build it, and he came to me and told me that he wanted it on the line. I told him I did, too, as near as I could get it; somehow that way.”
*183After that the plaintiff, taking the defendant at his word, had surveys made for the purpose of ascertaining the true location of the line and proceeded to erect a fence on the line thus ascertained. As to what occurred at the time the fence was being built, the plaintiff testified as follows :
“ Q. Didn’t he tell you when you were building that fence if you -built it there he would tear it down? A. Yes, sir. Q. What did he tell you ? A. He said if I didn’t put it on the line he would. Q. And he didn’t agree to that as the line? A. It appeared not.”
The interpretation of this language was for the jury, but they might fairly interpret what the plaintiff said to mean, not that he could tear down the fence in any event, but that he would tear it down if it was not on the true line. If the plaintiff’s testimony was to be believed, it certainly was not for the court to declare that he obtained possession by artifice or violence, and the doctrine enunciated in Zell v. Ream, 31 Pa. 304, was not applicable to the case. In short, if both parties claimed that the old fence was not on the true line and both desired it to be put on the line, and if the plaintiff put it on the true line and was in peaceable possession of the land thus enclosed, even for so short a period as a week or ten days, I do not see why he could not maintain trespass. I respectfully submit that these questions of fact, including the question of the peaceableness of the plaintiff’s possession, were for the jury.