State v. . Bryson

Dillard, J. This was an indictment against the defendant under chapter 32, section 116, of Battle’s Revisal, for entering and passing through a field of one Chastain, the prosecutor, after being forbidden to do so. To constitute the offence intended to be punished by the statute under which the bill of indictment was framed, there must be an entry on land after being forbidden; and such entry must be wilful, and not from ignorance, accident, or under a bona fide claim of right or,license. State v. Hanks, 66 N. C., 612; State v. Ellen, 68 N. C., 281; State v. Hause, 71 N. C., 518. The constituents of the offence we find in this case, on examination of the testimony set out in the case of appeal, to be as follows: Defendant entered upon and passed through the field of the prosecutor after being forbidden, and he did so wilfully and without a claim to the land on which the trespass was committed, or a claim of a right of way, or license therein by grant or prescription. And so, the defendant had nothing to excuse him or screen him from conviction, unless his belief that he had the right or license of way under the circumstances specified in the terms of the instruction refused took away guilt and authorized his acquittal. The charge requested was that if the jury should find that defendant believed he had a right to enter or travel over the prosecutor’s land, because he and the former owner and tenants had done so for someten or eighteen years, he would not be guilty ; and the case of appeal states that the request was made on the authority of State v. Hause, 71 N. C., 518; *598 but His Honor refused to charge as requested, and in lieu thereof charged that if the lands of Coward under whom defendant was lessee, adjoined a public road, the defendant should have entered his field through Coward’s land, and if he did not do so, but entered the same through the field of the prosecutor, he would be guilty. We concur with His Honor that Hause’s case is not like the present in its facts, and did not authorize the instruction requested by the defendant. In Hause’s case, a road led- from his land across a narrow strip of the prosecutor’s land to a public road, which was opened some fifteen or sixteen years before, and had been used by the defendant and prior owners and occupants of his land, until notified a short time before the finding of the indictment; and it was proved that defendant and former owners and occupants had been accustomed to cross the said strip at different points for more than thirty years without any objection from the prosecutor; and it was held that Hause might have bona fide had the belief, and acted on it; that the user for so long a time had clothed him with a right or license to travel over the land ; and if so, there would be wanting an essential to the offence, and the defendant would not be guilty under the statute. But in this case the facts were far otherwise: The field cultivated by defendant at the time of the trespass, together w'ith the field or enclosure trespassed upon, had both been the property of the prosecutor, and used and occupied by him and his tenants and servants, passing to and from the field of the defendant, through the field trespassed upon, at pleasure, up to the sale to Coward whose tenant the defendant is, which was about three years before the trial of this cause in the court below; and that the only user of this way through the prosecutor’s enclosed grounds by Coward and the defendant claiming under him, was since the sale under notice just before the beginning of this prosecution. Upon the facts in Hause’s case, the claim of a license by *599 presumption of a grant from the length of the user by the defendant and former owners of the same land, may not in law have been well founded. But it was such that defendant might thereupon reasonably and bona fide claim a right of way, or license to pass and repass. And therefore in such ease it was material to inquire into the existence of such belief on the part of the supposed trespasser, and to submit it as a question of fact to the jury, with instructions to convict or acquit as they might find the fact to be. In this case the entire lands, including the field cultivated by defendant, had been the property of the proseeutor until the sale to Coward about three years before the trial. There had been no user of the way through the prosecutor’s field by defendant or Coward, except for this short period of time, and that was permissive rather than as of right. "When the permission was withdrawn by notice to defendant, there was no fact or facts on which defendant could claim a right by presumption, by way of adverse user, against the prosecutor, or on the foundation of which he could reasonably and bona fide believe he had a license to pass through the prosecutor’s field. The defendant however claimed that he believed he’had a license notwithstanding the forbiddance of the prosecutor, and be desired of the court to submit such his belief as a question of fact to the jury, with instruction to acquit if found to be true. If a party be indicted for a trespass on land, and in the proof there be no evidence of a claim of title, or such facts and circumstances upon which he could reasonably and bona fide believe he had a right to do what he did, the court will not submit an inquiry to the jury as to a mere abstraction, and therefore we hold there was no error in the refusal to charge the jury as requested, and none in the eharge as given. Let this be certified, to the end that the law be executed. Per Curiam. No error.