State v. . Piper

89 N.C. 551

• Court: Supreme Court of North Carolina
• Decided: October 5, 1883
• Status: Published

Opinion

MeeeimoN, J.

It appears that the prosecutrix was in the actual possession of and cultivated the field up to the fence, embracing that part removed by the defendant, and that one Whitaker was in possession of the field and cultivated the same on the opposite side of the fence, as lessee of the defendant. The fact that the fence was on the land let to Whitaker cannot alter the case, because it was built by Nichols in his life-time under his lease; he had actual possession of the land up to it, until his death, and his widow, the prosecutrix, had actual possession thereof continuously next after his death, until and at the time the fence was removed. So that, on one side of the fence the field was in the lawful possession of the prosecutrix, and on the other it was in the lawful possession of Whitaker. The defendant, for the purpose of the statute, for the time was not the owner of the fields and the fence; he had no right to go upon the field on either side of the fence; he committed a trespass when he did so, and especially when he removed the fence; he had no right to remove it; he unlawfully removed it, and the animus sufficiently appears. So he was guilty, and the court ought to have so held upon the special verdict. State v. Graham, 8 Jones, 397; State v. Hovis, 76 N. C., 117.

There is error. Judgment reversed, with instructions to enter a verdict of guilty upon the special verdict, and proceed to judgment according to law. Let this be certified.

'Error. Reversed.