Wilson’s Red Book, 232
Court of Common Pleas of Delaware, Sussex County.
April, 1799.
Evidence that the fence was on the dividing line of Fisher and Rowland, under whom defendant justified.
Bayard and Wilson for defendant. Hall, Vining and Ridgely for plaintiff.
Defendant urged that there was a tenancy in common of the fence, and by 1 Esp.N.P. 411 trespass will not lie. Plaintiffs relied on 4 Com.Dig. 75, [title] “Estates,” sections K and J, trespass will lie for removing boundaries.
NOTE. Though plaintiff prevailed, the point was not well examined, vide Co.Litt. 200 a, b. Trespass will lie for actual ouster, but not reception of profits. Trespass will lie for the destruction of the thing, but not for taking what may be retaken, etc.