This is an action for injuries alleged to have been sustained by plaintiff by reason of the defendant wrongfully tearing down a partition fence between their respective lands, and a portion of plaintiff’s fence connecting therewith. The answer alleged that six months prior to the time in question the plaintiff notified him that on the sixth day of August, 1883, he would tear away the fenoe so dividing their lands, and that on said day the defendant tore away said fence which plaintiff notified him he intended to remove on that day; that defendant tore away said fence in a careful and prudent manner, and set the same back a few feet on his own land, and denied the injury, etc.

The reply tendered the general issue.

The bill of exceptions recites simply that both parties *355•offered evidence tending to support the issues on their 'part. No instructions appear to have been asked or B'ven. The court found the issues for plaintiff, assessing s damages at the sum of fifteen dollars. Defendant has appealed.

I. As no instructions were given or refused, and as the bill of exceptions recites that evidence was offered and received tending to support the issues on either side, the only question to be considered in this record is, does the petition state facts sufficient to constitute a cause of aotion i

We are of opinion that it does.

It avers, and the answer itself concedes, that the fence was a partition fence. It is also averred that the adjacent lands of plaintiff were in cultivation, with grass, rye, etc., and that defendant tore away this fence, and a part of plaintiff’s fence connecting therewith, whereby the crops and grass were exposed to the invasion of stock, which entered, and trampled, and destroyed the crops, etc. ; and that plaintiff’s stock running on his inclosures adjoining said partition fence, escaped, whereby plaintiff was put to great trouble and expense in hunting the same, all to his damage in the sum of ohe hundred dollars, for which judgment is prayed, together with the penalty of five dollars as, by statute in such case, made and provided. This certainly states a good cause of action under the statute. Sects. 3921, 3922, 3923, Rev. Stat. The evidence tending to establish these facts entitled plaintiff to a verdict, his witnesses being credited, which was solely for the trier of the facts.

Section 5663, Revised Statutes, provides that: “No . division fence shall be removed without the consent of all the owners thereof, unless the party desiring to remove his portion of such fence shall first give to the other owner or owners six months’ notice, in writing, of his intention to move the same, and at the expiration of said time he may move his part or portion thereof.”

We do not think, as contended by the appellant, *356that the notice given by plaintiff authorized the defendant to act thereon by removing the fence without giving the plaintiff the required notice of such intention. The plaintiff might abandon his declared intention. He is not compelled to proceed after such notice. It is only. where the party making the removal has given the notice that the statute affords any protection to him for the-interference. We fail to discover, in the simple act of the plaintiff giving notice of an intention to sever, any element of an estoppel in favor of the defendant. He was not notified, nor called on, to change his position, or-to make the removal. He would have nothing to do for his own protection until the plaintiff made the severance; or, at least, the answer discloses no act done by him prior to the removal. On discovering that the plaintiff did not act on the notice, if the defendant desired to take the aggressive, he should have given the required notice to the plaintiff.

The judgment is affirmed.