#### STATE v. JOHN FENDER, CROCKETT CHEEK, and TROY COLLINS.

(Decided November 28, 1899.)

Indictment — Trespass—The Code, Sec. 1062.

Offences in the nature of trespass are against the possession; where the actual possession is in the prosecutor, the defendant can not exculpate himself by showing title to the land upon which the fence was situated, and from which it was unlawfully removed by defendant.

INDICTMENT imcler see. 1062 of Tbe Code for unlawfully and willfully pulling down and removing a fence surrounding a pasture, tbe property of,, and in possession of, one Morgan Edwards, tried before Allen, J., at Spring Term, 1899, of tbe Superior Court of Alleghany County.

Tbe case is fully stated in tbe opinion.

Tbe defendants were convicted, and from the judgment rendered appealed to tbe Superior Court.

Messrs. Finley & Greene, for appellants.

Messrs. R. A. Doughion, and W. C. Field, with Attorney-General, for tbe State.

Douglas, J.

This is a criminal action wherein tbe defendants were indicted under sec. 1062 of Tbe Code for unlawfully and willfully pulling down and removing a fence surrounding a pasture, tbe property of, and in. tbe possession of, one Morgan Edwards.

Tbe evidence showed that there was a dispute between prosecutor and tbe defendants as to the correct line of two between them, the two lines being about twenty yards apart; that about four days before tbe alleged offense, tbe prosecutor *650enclosed a pasture, commencing on bis undisputed land and extending across the line claimed by the defendants on to 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; 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 enclosure had been built, the defendants went to' the place in the night time, and pulled it down; that defendants owned the land on one side of the two' disputed lines, and the prosecutor on the other; 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 it was capable of being used, then it would not be a trespass for the defendants to pull it down, and if they did so, they would not be guilty unless they allowed the fence to remain long enough for (the prosecutor) to obtain quiet possession of the inclosure, which extended on to the land between the two- lines; and if the prosecutor had *651gotton into quiet possession, and was using it for sucb purposes as the land was capable of being used, and while so in possession and using it the defendants pulled it down, they would be guilty.

The jury were further instructed that if the defendants were in possession of the land on which the fence was moved, and within a reasonable time, and before the possession of the prosecutor became quiet and fixed,they pulled down the fence, they would not be guilty; and further, that if the prosecutor claimed one line and defendants another, and the prosecutor moved the fence over the line claimed by the defendants to or near the line claimed by himself, and the defendants knew it, and allowed it to remain until prosecutor completed the work and kept the fence or the disputed land around his pasture as a part of his inclosure long enough to get quiet control of it, and use it. for the purposes for which it was capable of being used, and the defendants then pulled it down, deliberately and of purpose, and without regard to whether it was done rightfully or wrongfully, they would be guilty.

Opinion.

We see no error either in the exclusion of testimony or in the charge of the Court. Offenses of this nature are against the possession — and hence it has been repeatedly held, that where the State has shown actual possession in the prosecutor, the defendant can not exculpate himself by showing title to the land upon which the fence was situated. State v. Graham, 53 N. C., 397; State v. Hovis, 76 N. C., 117; State v. Piper, 89 N. C., 551; State v. Marsh, 91 N. C., 632; State v. Howell, 107 N. C., 835, 840. If the defendant has a good title to the land, he may assert his right in a civil action.

Of course, if the prosecutor were admittedly a naked trespasser, without any pretense of right,it might be different, but the courts do not encourage the trial of title upon the crim*652inal docket. Still less can it sanction tbe conduct of a defendant in cutting the gordian knot of a contested title by a criminal act, which, in its very nature, is calculated to bring on a breach of the peace. But the possession of the prosecutor must be actual, and not merely constructive. Nor will actual possession suffice, if it consists in a mere ouster of the defendant, unless coupled with his actual or implied acquiescence. Such acquiescence, as well as the nature of the possession, are usually mixed questions of law and "fact, and were properly left to the jury.

Affirmed.