State v. . Buckner

Reade J. The indictment charges that the defendant entered the premises with a strong hand the prosecutor being then and there present. That is a sufficient chai’ging of the forcible trespass. The question remains whether the facts proved sustain the charge. There were three of the defendants. They were armed with a rock, a stick, a cowhide and a pistol. They were violent in manner and threatening in language, demanding of the prosecutor to come out and take a whipping, and leave the neighborhood. This was at his gate, and within forty feet of his house. If this was not calculated to alarm the prosecutor, and did not tend to a breach of the peace, then we are at a loss to know what sort of conduct would have that effect. The defence was put mainly upon the ground, that the defendants were in a lane or road which passed over the land of the prosecutor and near to his housé, which the public had used for sixty years, and that thereby it became a public road, in which the defendants were at liberty to do as they pleased. All misbehavior is aggravated by being in a public place! The only privilege which the public have in a public road is that of passing over it. If they misbehave in it, they create a nuisance. The road is for travel and for no other purpose. The property in the soil is not in the public but in the owner of the land over which it runs. The soil, the trees, the rocks, the grass in it and on the side of it, are all his. It would be monstrous if, because a land owner dedicates to the public the right to pass over his land *560 in travel, they should use it as a platform from which to assail him with impunity. Whether it was a highway or a private way, or no way at all, makes no difference. Grant that the defendants had a right to pass along the way,, and that the entry, if peaceable, was not even a civil trespass, yet as soon as they committed the violence charged, they were trespassers ab initio. This would have been so, if they had stood in the middle of the road; but they left the road and went up to the gate, and stood there. There is no error in the ruling of his Honor, and none in the record. This will be certified, &c. Per Curiam There is no error.