(June Term, 1856.)
It is not indictable for one to remove a fence from his own land which had been unlawfully put there by another, although it did partially enclose a cultivated field belonging to that other.
In order to subject one to the penalties of the Act of 1846, for removing a fence, he must be guilty of a trespass.
THIS was an INDICTMENT for removing a fence, under the Act of Assembly of 1846, Rev. Code ch. 34, sec. 103, tried before his Honor, Judge DICK, at the last Superior Court of Davidson County.
Attorney General, for the State.
No counsel for the defendant in this Court.
The defendant being the lessee of a field for a term of years, built a fence near the dividing line, between his land and the land of the prosecutor, which was then under cultivation, but entirely on his own premises. The prosecutor unlawfully and without license, extended his fences over upon the land of the defendant, and joined them with the fence of the latter. It was for removing that part of the prosecutor's fence, which was on the land possessed by the defendant, that this indictment was brought. This was a case agreed and put in the form of a special verdict, in which the foregoing facts were submitted for the judgment of the Court. His Honor being of opinion for the defendant, accordingly gave judgment for him, from which the solicitor for the State appealed to this Court.
The present indictment is framed upon the 103d section of the 34th chapter of the Revised Code, which enacts that, "If any person shall unlawfully and wilfully burn, destroy, pull down, injure or remove any fence, wall or other enclosure, or any part thereof surrounding or about any yard, garden cultivated field, or pasture," he shall be deemed to be guilty of a misdemeanor. The special verdict states, that the part of the fence, for the taking away of which the defendant was indicted, was "unlawfully and without license" put upon his land by the prosecutor. How it would be unlawful for the defendant to remove this obstruction from his own land, we are unable to conceive. If the prosecutor sustained any damage, it was in consequence of his own wrongful act, and he cannot make the defendant criminally responsible for it. "To subject a person to the penalties of the Act in question, he must be guilty of trespass," of which the defendant in the present case, certainly was not. State v. Williams, Busb. Rep. 197. The judgment must be affirmed.
PER CURIAM. Judgment affirmed.