The opinion of the court was delivered by

The portion of the former rail fence that was taken away by the defendant, was not when so taken, nor when the deed of the premises was executed, nor when the defendant vacated the premises, in use as a fence, nor was it *643fit for a fence or designed to be so used. It was therefore no part of the realty by reason of being a fence. It was in fact just what the owner and lessee understood it to be, not a fence, but “ dead wood ” which the lessee was to have, and this long' before the deed.

Judgment reversed, and judgment for the defendant for costs.