Opinion
(January Term, 1868.)
1. In an indictment for forcible trespass it is sufficient to charge that the defendant entered the premises with a strong hand, the prosecutor being then and there present.
2. Where the land on both sides of a road, whether public or private, belongs to the prosecutor, he is the owner of the soil over which the road runs; and persons who stop upon such road, and use violent and menacing language to him, are guilty of forcible trespass.
3. The only privilege which the public have in a public road is that of passing over it, and those who abuse that privilege become trespassers ab initio, and create a nuisance.
FORCIBLE TRESPASS, tried before Buxton, J., at Fall Term, 1867, of the Superior Court of BUNCOMBE.
Merrimon for appellant. (559)
Attorney-General, contra.
The indictment charged that the defendants "with force and arms in and upon a certain piece of land of A. G. Anderson (the prosecutor) situate in said county, unlawfully, violently, forcibly, injuriously, and with a strong hand did enter, the said A. G. Anderson being then and there present upon the said land," etc., "to the great damage of the said A. G. Anderson and against the peace and dignity of the State."
Upon the trial it appeared that the defendants had entered a lane which ran in front of the prosecutor's house, and had gone to a gate which opened into his yard at a distance of some forty feet from the front of the house, and there called to him in abusive and threatening language, ordering him to come out, to leave the country, etc. During this time Anderson was in the (front) porch of his house; one of the defendants had in his hand a rock, another a stick and cowhide, and the third had a pistol.
Under the instructions of the court the jury returned a verdict for the State; and, motions for a new trial and in arrest of judgment having been overruled, there was judgment and appeal.
The indictment charges that the defendant entered the premises with a strong hand the prosecutor being then and there present. That is a sufficient charging 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 defense 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 house, 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 landowner dedicates to the public the right to pass over his land in travel, they should use it as a platform from which to assail him with impunity. (560) 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, etc.
PER CURIAM. There is no error.
Cited: S. v. Widenhouse, 71 N.C. 280; S. v. Davis, 80 N.C. 352; S. v. Newberry, 122 N.C. 1077; Saunders v. Gilbert, 156 N.C. 475.