#### STATE v. C. F. MALLARD.

(Filed May 14, 1907).

Indictment —Trespass—Railroads—Right-Of-Way-—• Appeal —Advice of Counsel.

Payment of the appraisement into Court is a condition precedent to a right of entry for construction purposes by a railroad; upon the trial under an indictment (Revisal, sec. 3688) for trespass on lands after being forbidden, it is no defense to show that defendant acted under the instructions of his superior officer of a railroad company in entering upon the lands to construct a railroad, . pending an appeal by the railroad company (Revisal, sec. 2587), when the company has not paid into Court the sum appraised by the commissioners. Evidence that such superior officer therein acted by the advice of eoimsel learned in the law is incompetent.

The defendant was tried at November Term, 1906, of DupliN Superior Court before Ms,Honor, Jones, J., and a jury, for a violation of section 3688 of tbe Revisal, upon appeal from a justice of tbe peace, and was convicted. From tbe judgment rendered, defendant appealed.

Assistant Attorney-General Clement for tbe State.

Roundtree & Carr for defendant.

BkowN, J.

This case is similar to State v. Wells, 142 N. C., 595, tbe offense having’ been committed at tbe same time. In fact, Wells was working under this defendant, and for tbe same company, at tbe time of tbe alleged trespass. In Wells’ case tbe Judge found tbe facts by consent, and as they were beld to be insufficient to support tbe judgment, a new trial was directed.

Tbis case was tried before a jury, and comes up upon assignments of error to bis Honor’s rulings. It was beld in Wells’ case tbe Judge found tbe facts by consent, and as they bad no authority to proceed to construct its road upon tbe lands of others until the amount of the appraisement had been paid in Court.

*667Tbe defendant’s own evidence shows that be was assistant superintendent of tbe logging department and bad charge of tbe building of tbe railroad; that, acting under orders from bis superior, be and bis force bad entered on Carter’s land and were constructing their road thereon against tbe protests of tbe owner. It is not pretended that such entry was for tbe purpose of marking out and surveying tbe route. It is not pretended that, pending tbe appeal in tbe condemnation proceeding, tbe appraisement money bad been paid into» Court, and tbe defendant fails to state in bis evidence that be was informed or believed that it bad been paid. At tbe same time be • states, that be knew tbe land was Carter’s property, and that on tbe profile map furnished by tbe company Carter’s name was put down as tbe owner. The defendant offers no evidence, except that in entering and constructing tbe road be obeyed tbe order of bis superior officer.

Tbe defendant offers to prove that bis superior officer, Parsley, was advised by counsel learned in tbe law to proceed to construct tbe road, notwithstanding tbe money .bad bad not been paid. There may be cases where, under certain circumstances, such advice might be evidence of tbe tona fieles of an entry; but' here tbe facts are all before tbe Court, and, giving tbe defendant credit for all be offered to prove, tbe entry can neither be justified nor excused. State v. Durham, 121 N. C., 546; State v. Bryson, 81 N. C., 595; State v. Crawley, 103 N. C., 353; State v. Fisher, 109 N. C., 817.

Payment of tbe appraisement into Court is a condition, precedent before a right of entry can be acquired for construction purposes. Rev., 2587. This is a reasonable protection to tbe land-owner, and without compliance with tbe statute tbe company cannot justify its entry, notwithstanding the advice of counsel. To bold that tbe orders of the officers, although based on such advice, would justify or excusé such entry, nothing else appearing, would destroy tbe protection *668the statute gives to the land-owner and lay open bis lands to unwarranted seizure by every so-called railroad and logging corporation (whether solvent or insolvent) that desired to cross his lands and had been able to secure the right of eminent domain as a common carrier and public servant.

Assuming that strictures of the Solicitor in his argument to the jury upon the high-handed conduct of the logging company were unduly severe, which we by no means concede, ■yet the defendant was not prejudiced thereby. ITis Honor might well have instructed the jury that upon all the evidence, if believed, including that of defendant himself, they should find him guilty.

Affirmed.

WalKER,, J\, concurs in result.