State v. Fender

• Decision Date: 28 November 1899
• Citation: State v. Fender, 125 N.C. 649, 34 S.E. 448 (N.C. 1899)
• Parties: STATE. v. FENDER et al.
• Court: North Carolina Supreme Court

34 S.E. 448

125 N.C. 649

STATE.

v.FENDER et al.

Supreme Court of North Carolina.

Nov. 28, 1899.

CRIMINAL LAW—TRESPASS—DESTRUCTION OF FENCE.

Title to the land in defendant is no defense to a criminal action for pulling down a division fence erected by the prosecuting witness, when the prosecutor was in actual possession with the acquiescence of defendant.

Appeal from superior court, Alleghany county; Allen, Judge.

John Fender and others were convicted of trespass, and appeal. Affirmed.

This is a criminal action, wherein the defendants were indicted, under section 1062 of the Code, for unlawfully and willfully pulling down and removing a fence surrounding a pasture, the property of, and in the possession of, one Morgan Edwards. The evidence showed that there was a dispute between prosecutor and the defendants as to the correct line of two between them, the two lines being about 20 yards apart; that about four days before the alleged offense the prosecutor inclosed a pasture, commencing on his undisputed land, and extending across the line claimed by the defendants onto the land between the disputed line, and near the line claimed by the prosecutor; that defendants had done some grubbing on the land between the lines up to the line claimed by them; that when the defendants, or one of them, found out the pasture fence was being erected by the prosecutor, he saw the prosecutor, and complained about it; that there was an effort to settle the dispute, and they went to Sparta to examine a certain map for that purpose, but failed to agree, and four days after the inclosure had been built the defendants went to the place in the nighttime and pulled it down; that defendants owned the land on one side of the two disputed lines, and the prosecutor on the other; that it was uncultivated, and mostly woodland, except that defendants had done some grubbing on their land, which had extended on to the land between the disputed lines, but not at the point where the pasture fence was built. The defendants offered to show title, and also surveys, and certain partition proceedings tending to show the correct line, which were excluded upon objection.

After stating the contention of the parties, and the evidence and the law as to reasonable doubt, the jury were further instructed that the title was not in question, and not affected by this trial; that, to constitute the offense charged, there must be a trespass; that if the prosecutor moved the fence to the line claimed by him, and the land he moved it on was in the possession of the defendants, and being used by them for such purposes as ft was capable of being used for, then it would not be a trespass for the...