37 Ark. 122 | Ark. | 1881
This was a prosecution under the act of January 21st, 1875 to protect enclosures from trespasses.
The act declares “That if any person shall ride, range or hunt within the enclosed grounds of another, without the consent of the owner previously obtained, or shall pull down or break the fence, or leave open the gate of the farm, plantation or other enclosed grounds of another, the party so-offending shall be guilty of a misdemeanor, and upon convic-
tion thereof, before a Justice of Peace or other court having jurisdiction of such offense, shall be fined in any sum not less than ten dollars nor more than one hundred dollars, and in default of the payment of such fine, shall be imprisoned in the county jail not less than ten nor more than thirty days.”
The evidence showed that the fence the defendant was ■charged with breaking, was the partition fence between the lots of himself and Demarsh, the prosecuting witness, and the common property of them both.
Having the same right in the fence, and equal power and •control over it with Demarsh, he did not commit a trespass in knocking off the planks Demarsh had added to it; 2 Hill, on Torts, 277; Cooley on Torts, 327; Freem, on Coten. and Part, secs. 298, 299; Cubitt v. Patin, 8 Barn. & Cress, 257; Bennett v. Bullock, 35 Penn. St., 364.
Had he, however, pulled down and destroyed the fence, •such destruction of the common property would have been .a trespass, but we are not called upon to say whether he would have been liable to an indictment or prosecution therefor. .
As the fence was the common property of the defendant and Demarsh, the finding of the court that it was broken by the defendant without the consent of the owner was not sustained bjr the evidence.
The judgment is reversed and the cause is remanded with instructions to grant the defendant a new trial.
