The information in this case is based on section 2692, Comp. Laws 1909:
"Malicious Mischief. — Every person who maliciously injures, defaces or destroys any real or personal property not his own, in cases other than such as are specified in the following sections, is guilty of a misdemeanor, and in addition to the punishment prescribed therefor, he is liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property or public officer having charge thereof."
This section was evidently intended to protect the owner of property, and was not meant to protect the property itself. Under the provisions of this statute, it matters not what the motives of the owner of property may be, he may deface or destroy
it at pleasure without being liable to the pains and penalties prescribed therein. The statute also creates an increased civil liability for damages in favor of the owner of property so defaced or destroyed.
From this it is clear that the malice necessary to constitute this offense must be entertained against the owner of the property so defaced or destroyed, and that an act will not constitute malicious mischief where it is done in good faith and under a reasonable claim of right. See Commonwealth v. Drass,146 Pa. 55, 23 A. 233. In prosecutions for malicious mischief, malice toward the owner of the property injured is the gravamen of the offense, without which it would be a mere trespass. 2 Wharton's Criminal Law, 1070; 2 Bishop's New Cr. Law, sec. 996; Desty's Cr. Law, 144c. The intent with which an act is done is material, and, if it be shown that the defendant acted in good faith or under a claim of right, the charge of malicious mischief cannot be sustained, and any evidence tending to rebut the charge of malice or going to show the animus of the defendant is admissible. Woodward v. State, 33 Tex. Crim. 554, 28 S.W. 204. In the case of Adams v. State, 47 Tex. Crim. 35, 81 S.W. 963, it was held that digging a ditch on the land of another under the belief that it was the land of the defendant is not punishable under a statute prohibiting a willful and malicious injury or destruction of real property. In the case of State v. Quinn,26 Mo. App. 17, it was held that, where a defendant had trimmed a hedge which he honestly believed to be on his own land, he could not be convicted for a willful and wanton destruction of such hedge, although the proof might show as a matter of fact the hedge was not on the land of the defendant.
It has been repeatedly decided that in cases of malicious mischief the spirit in which the act was done must be toward the owner of the property, and not against the property itself. Statev. Wilcox, 3 Yerg. (Tenn.) 278, 24 Am. Dec. 569; Northcot v.State, 43 Ala. 330; Hobson v. State, 44 Ala. 380; Newton v.State, 3 Tex. App. 245[3 Tex. Crim. 245]; State v. Robinson, 20 N.C. 130,
32 Am. Dec. 661. It is not malicious mischief to tear down a fence which a party believes is a trespass on his rights. Sattler v.People, 59 Ill. 68; Palmer v. State, 45 Ind. 388; Commonwealth v.Cole, 26 Pa. 187. The case of State of North Dakota v. Minor,17 N.D. 454, 117 N.W. 528, 19 L.R.A. (N.S.) 273, presents an instructive discussion of this question. In connection with this case there will also be found an exhaustive annotation of authorities from which it appears that the word "maliciously," as used in statutes relating to the crime of malicious mischief, imports that the act which constitutes the offense must have resulted from actual ill will or revenge and intent to vex and annoy the owner of the property injured. We are therefore of the opinion that the court erred in refusing to give the instructions requested by counsel for appellant. We think they are all applicable to the evidence, and that they correctly state the law. If this case is tried again, we suggest to the county attorney that he file a new information in harmony with the views expressed in this opinion. The objections made to the information are well founded. The principles of law involved in this case are well settled, run all through the law, and are absolutely just. If A. takes a horse or cow or any kind of personal property, believing it to be his, he cannot be guilty of theft, although it may afterwards turn out that as a matter of fact such property belonged to another. Why is this the law? Because a fraudulent intent is absolutely necessary before the crime of theft can be committed. If A. kills another, acting in good faith upon reasonable appearances of danger to his life, although it may afterwards turn out that the danger was not real, but was only reasonably apparent, he is not guilty of murder or of any degree of unlawful homicide. Why? Because the intent with which life is taken is the gravamen of the offense. As the law makes malice toward the owner of the property defaced or destroyed the gravamen of the offense of malicious mischief, it must be proven to exist beyond a reasonable doubt. As we have never before had occasion to construe this statute, and as it is a matter of importance that the true meaning should be known, we have
gone into the question presented as thoroughly as possible. If appellant has committed a trespass upon the property of others, the parties injured have their remedy in a civil action. Unless the state can secure additional evidence showing malice toward the owners of the property defaced, it will be useless to retry this case. Again, if it be true that the telephone wire was hung up in such manner as to interfere with the ability of appellant to have ingress to or egress from his farm as was testified to by appellant and not denied by any witness for the state, it would constitute a nuisance, and he would have the right to cut such wire in order that he might have such ingress or egress, and such act would not be a criminal offense or even ground for a civil action. The right of a person injured by a private nuisance to summarily abate such nuisance is clearly stated in 29 Cyc. p. 1214, as follows:
"Private Nuisance. It is well established that a person who is aggrieved by a private nuisance has the right to abate the same by his own act, upon his own motion, without instituting any legal proceedings. So the person aggrieved may kill a dog which haunts his premises, and by barking and howling becomes a nuisance, cut off branches of a neighbor's trees overhanging his land, remove a part of an adjoining owner's wall which overhangs his premises, or cut off the eaves of a building overhanging his property."
In the case of Pilcher v. Hart, 1 Humph. (Tenn.) 524, it was held that, although a person may have assented to the creation of a private nuisance, this would not take away his right to afterwards abate the same if he found it injurious. In Hickey v.Mich. Cent. Ry. Co., 98 Mich. 498, 55 N.W. 989, 21 L.R.A. 729, 35 Am. St. Rep. 621, the Supreme Court of Michigan held that a railway company had the right to cut off branches from trees growing on premises adjacent to its right of way where such overlapping branches were injurious to the rights of the company. In connection with this case will be found a great number of authorities supporting this doctrine. Where a tree growing on the land of A. has branches which project over the land of B., B. has the right to cut off everything which overhangs his land. Cooley on Torts, p. 672. A party aggrieved by a private
nuisance may have his action for damages or he may summarily abate the nuisance. Harvey v. Dewoody, 18 Ark. 252. The Supreme Court of Iowa has decided that a person may abate a private nuisance by his own act when it appears that such nuisance is injurious to such person or his property at the time of such abatement. Moffett v. Brewer, 1 G. Greene (Iowa) 348. We might continue to cite authorities on this question indefinitely. In fact, the law upon this subject is well settled.
The judgment of the lower court is reversed, and the cause is remanded for proceedings in harmony with this opinion.
ARMSTRONG and DOYLE, JJ., concur.