52 Ind. 478 | Ind. | 1876
Prosecution by affidavit and information against the appellant, for malicious trespass in removing a fence, the property of George Robertson. Trial, conviction, fine, appeal. '
The record is lengthy and tedious. Without stating the proceedings in detail, suffice it to say that the appellant has brought the case before us upon its merits; and,, without noticing various points elaborated in the brief for. appellant, all of which fall within the main question, did the court err in overruling the motion for a new trial ? we proceed at once to the ground of the controversy.
From the evidence, which is all before us, it appears that John Dawson, the father of the appellant, in 1812, became the owner of a certain quarter of a section of land, described, lying in Dearborn county, by purchase from the United States. In 1827, he sold and conveyed to Benjamin Williams a certain five acres of said quarter, described by metes and bounds, lying on the north side of the west fork of Tanner’s Creek. Through several links in the chain of title, this five acres deeded by John Dawson to Williams became and now is the property of George Robertson, the prosecuting witness. The title to the remaining portion of the quarter, lying on the south side of Tanner’s Creek, opposite the five acres so conveyed by John Dawson to Williams, has remained in the Dawsons continuously since 1812, and by descent became, and now is, the property of the appellant. The ancestor, John.Dawson, after his sale and conveyance of the five aeres to Williams, still claimed title to the bed of Tanner’s Creek, as not included, in any part, in his conveyance to Williams, and before that time and afterwards, until his death, in 1848, exercised open acts of authority and ownership over the bed of the creek, by hauling stone therefrom, from parts which are now disputed grounds. The Dawsons, to whom the lands south of the creek descended, upon the
We do not give any construction to the words in the several conveyances, by and through which Robertson holds title to his lands.- We do not decide whether the line between these two neighbors runs along the north bank of Tanner’s creek, or follows the thread of the stream. We intimate no opinion as to whether trespass would lie against the appellant, brought by Robertson in a civil action; nor as to which of these men might ultimately prevail in a trial of their civil rights as to the line between them. But we are clearly of the opinion that there is no sufficient ground for a criminal prosecution against the appellant. The distinction between trespass and malicious trespass must be carefully ascertained and firmly applied in each case. The redress for a trespass belongs to the action of the parties
In the case before us, there is no evidence of malice on the part of the appellant against the prosecuting witness, nor of any malicious intent in removing the fence. He acted under a long line of written title, with at least a colorable right, under professional advice, and with apparent good faith. Indeed, we think the evidence repels the idea of malice, instead of proving the fact beyond a reasonable doubt. It seems to us the court below failed to maintain the distinction between trespass and malicious trespass, so essential to the rights of the parties.
The judgment is reversed; cause remanded, with direction to grant the motion for a new trial, and for further proceedings.