State v. . Faggart
87 S.E. 31
N.C.
1915
Check Treatment
WaukbR, J.,

after stating tbe case: Tbe statute under which this indictment was drawn has been tbe subject of much consideration by this Court. It was thought, until tbe decision in S. v. Bryson, 81 N. C., 505, that tbe meaning of tbe Legislature was quite well understood, and that tbe law was enacted to keep off intruders or interlopers, and not to punish those who, in good faith- and under claim of right, bad entered upon land. It was held very soon after tbe adoption of tbe statute that where one, having no legal right, entered upon land under a claim of such right, and in good faith, tbe act of entry was not within tbe mischief of tbe statute, though within its words. S. v. Hanks, 66 N. C., 613; S. v. Roseman, ibid., 634; S. v. Ellen, 68 N. C., 281; S. v. Hause, 71 N. C., 518; S. v. Crosset, 81 N. C., 579. In those cases we approved what was held in Dotson v. State, 6 Coldwell (Tenn.), *740 p. 545, in regard to a statute similarly worded: “If one commit a trespass upon tbe land of another, his good faith or ignorance of the true right or title will not exonerate him from civil responsibility for the act. But when the statute affixed to such a trespass "the consequence of a criminal offense, we will pot presume that the Legislature intended to punish criminally acts committed in ignorance, by accident, or under claim of right, and in the Iona, fide belief that the land is the property of the trespasser, unless the terms of the statute forbid any other construction.” And again, at p. 548: “We think that to authorize a prosecution of this nature there must be something more than a mere technical trespass upon the land. The trespass must be committed willfully and knowingly.” In S. v. Bryson, 81 N. C., 595, the Court held that the defendant must have acted bona fide, under a claim of right to enter, but that he must also have had reasonable ground for his claim and his belief that he had the right. The Court said: “If a party be indicted for a trespass on land, and in the proof there be no evidence of a claim of title, or of 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.” It will be seen by careful attention to the facts of that case that there the defendant had not the semblance of a right to enter upon the land, and no reasonable man could have thought that such a right existed. He once had a bare license to cross the land along a path or way, but this privilege, which he must have known was revocable at the will of the owner, was withdrawn by him, and the entry was thereafter made. This was a clear case of willful entry, and it could not have been bona fide, under a claim of right; and so are the cases which have followed that decision. The facts in them showed, on their face, that the're'was not room for even a pretense of right, nor any ground upon which to base an honest claim. The Bryson case is reviewed by the Court in S. v. Whitener, 93 N. C., 590, Justice Ashe delivering the opinion with his accustomed clearness and precision of statement, and it is distinguished from the eases which preceded it by reason of its special facts, and the principle of the decision, thus limited, is not applicable to this case. In S. v. Wells, 142 N. C., 590, Justice Hoke, for the Court, .said: “Defendant prosecuted under section 3688, Revisal 1905, which makes it a misdemeanor for one to enter on the land of another after being forbidden, cannot be convicted if he enters having right or under a bona fide claim of right. S. v. Crosset, 81 N. C., 579; S. v. Whitener, 93 N. C., 590; S. v. Winslow, 95 N. C., 649. True, we have held in several well considered decisions that when the State 'proves there has been an entry on another’s laird after being forbidden, the burden is on the defendant to 'show that he entered under a license from the owner, *741 or under a bona fide claim of right. And on the question of bona fides of such claim the defendant must sIioav that he not only believed he had a right to enter, but that he had reasonable grounds for such belief. S. v. Glenn, 118 N. C., 1194; S. v. Durham, 121 N. C., 546. But where there is evidence tending to show that the defendant believed and had reasonable ground to believe in his right to enter, then, in addition to his right, the question of his bona fide claim of right must be in some proper way considered and passed upon before he can be convicted. The judge finds, and we agree with him, that the defendant entered without right, but the question of whether he entered upon a bona fide claim of right does not appear in the facts, and has never been determined. The defendant’s guilt, therefore, has not been established, and the judgment against him must be set aside.”

If the party who enters upon the land has a legal right to do so, there could be no question of his innocence; it is only where he has no such right that this statute applies. If he has the legal right, and enters forcibly and violently or with a strong hand, in a way tending to cause a breach of the peace, he would be guilty of forcible trespass, or forcible entry, as the case may be, at common law, and also be liable to a civil action for damages; but when he enters without force, while he may be liable civilly for damages because of the wrong committed by him, as where he did not have the legal right to enter, he is not criminally liable under the statute if his entry was made under a claim of title, founded' upon a reasonable belief that he had the right to go upon the land. 8. v. Whitener, supra. In this case it appears that the parties, prosecutor and defendant, were disputing as to the right of entry, the former contending that defendant had fully abandoned the premises, including the wheat field, and the defendant insisting that ho had not done so, and that he vacated the land temporarily because the prosecutor had not complied with his contract, and that by reason thereof the condition of the premises was such that he could not stay there. He notified the prosecutor that he must not take possession of the wheat field or cut the wheat, and he was forbidden by the landlord to come upon the land.

There is some evidence from which a jury might infer that defendant intended to return and cut the wheat. He lived on the land the first year and made a good crop, and would have remained on that part of it where the houses were had the prosecutor made it tenantable, as he had promised to do. He was bound to leave and seek another house in order to get proper shelter for his family and his stock, and this was caused by the landlord’s wrongful act.

When the defendant first cut the wheat the prosecutor hauled it away, but finally consented that defendant might continue the cutting, and then he appropriated all the wheat.

*742 We do not think this case is within the principle of S. v. Bryson, 81 N. C., 595, and the cases which have followed it, but that it is governed by the rule, as applied in the other cases, where the question of the defendant’s guilt was held to be one for the jury to decide, under proper instructions of the court. We do not think it was so unreasonable for the defendant to suppose that, under the circumstances, he had the right to go upon the land, when the crop matured, and cut the wheat, especially as the prosecutor had not complied with his contract, and compelled him to obtain shelter elsewhere. The facts might reasonably impress him with the belief, unlearned in the law as he was, that he had the right to gather what he sowed. We do not hold that he had a legal right to return to the land and cut the wheat. It is not necessary to do so, but we do not think the facts justified the peremptory instruction .that defendant was guilty on his own statement, and the question of good faith and reasonable claim must be submitted to the jury. We consider the case quite as strong for defendant as some of those decided by this Court, and above cited, where a similar conclusion was reached.

The original fault was with the prosecutor, who, by his failure to perform the contract, made that part of the land where defendant lived untenantable and compelled him to seek another home, though there is evidence that he did not intend to abandon his right to return and cut the wheat and oats. Being a layman, he might reasonably have thought that he had properly reserved this right owing to the prosecutor’s conduct in compelling him to leave, however the law may be.

New trial.