In Kimball v. Adams, 52 Wis. 554, it was held that a fence built as a permanent structure by one person upon the land of another, without any agreement between the parties as to the right to remove it, became a part of the realty, and the owner might remove it and dispose of the material at his pleasure. Two years later the legislature enacted ch. 202, Laws of 1883, which provides that “ when any owner or occupant of land shall have built a fence before a boundary line shall have been established between him and any adjoining land by the county surveyor, and if it shall prove, after the boundary line is so surveyed, that the said fence shall be on the adjoining land, the party who has built the same, or, if the land is sold, the party who built the same or the purchaser of the land, shall be the owner of the fence: provided, that the owner of the fence removes the same on the boundary line so established, upon a notice served upon him by the adjoining owner of land.” S. & B. Ann. Stats, sec. 1392a.

It was conceded on the argument by counsel for both parties that the controlling question on this appeal is whether this case is within the provisions of ch. 202. If it is, the judgment should be affirmed; otherwise it should bo reversed. The sole ground upon which the trial court directed a verdict for the plaintiff was that under said chapter the fence in question belonged to plaintiff, although erected on defendant’s land.

It will be observed that, in order to bring a given case *309within the provisions of the act of 1883, it is essential that the fence in question should have been erected before the county surveyor had established the boundary line between the lands of the respective owners. " In the present case the testimony is undisputed that the county surveyor, Liv-ermore, established the boundary line between the lands of these parties in 1873. This testimony that Livermore was the county Purveyor does not appear in the printed abstract of the record, and evidently it has been overlooked by counsel; yet it is in the record, and we cannot disregard it. Because the county surveyor located the boundary line before the plaintiff erected the fence in question, the case is not within the provisions of ch. 202, but is governed by the rule of Kimball v. Adams, 52 Wis. 554.

It follows that the learned circuit judge ruled erroneously in the premises, and that the judgment of the circuit court based upon such ruling must be reversed..

By the Gourt. — Judgment reversed, and cause remanded for a. new trial.