The opinion of the court was delivered by

Rockwoo(d brought his action before a justice of the peace. The bill of particulars is stated in the record to have been, in substance, “that the said John Loring on or about the 12th of November 1872, at the county of Howard, and state of Kansas, did then and there set the prairie grass on fire, and the said prairie continued to burn and said fire continued to spread until it reached and burned the hay, posts, and rails, and growing peach-trees, of the said Lewis Rockwood, which hay, posts, and rails, and growing peach-trees were in said county of Howard and state of Kansas. The burning occasioned great damage to the said Lewis Rockwood, to-wit: the amount of one hundred and sixty-one dollars and forty cents, the value thereof.” The justice held that this was an action of trespass on real estate, and the damages demanded exceeding one hundred dollars that it was beyond his jurisdiction, and dismissed it. On petition in error, the district court- reversed the judgment of the justice, and retained the case for trial. Plaintiff in error now seeks to reverse the judgment of the district court. "We think the district court was right. It nowhere appears that Rockwood was in possession, either personally or by tenant, of the premises Upon which the property destroyed was situated, or in any position to maintain an action for trespass on real estate. The property destroyed was personal property, or at least may have been, and there is nothing to show that it was so attached to the ground as to be part of the realty. This is clearly so as to the hay, posts, and rails.- As to the growing peach-trees, they may have been growing in a nursery, and part of its stock. The action is for the destruction of this property, and not for the injury to the realty.

The case was tried once before the justice with a jury, and *182judgment rendered for the defendant Loring. The justice set aside this judgment upon motion. A change of venue was then taken to another justice, by whom the case was dismissed. On reversing this judgment the district court rendered judgment against Loring for all the costs that had accrued up to that time. This was right, and in obedience to the plain direction of the statute. (Gen. Stat., p. 742, § 566.) The judgment will be affirmed.