109 Ala. 56 | Ala. | 1895
The declaration of Sam Wheeler as to the location of a stake on a boundary line between his lands and the lands of another person, made in the absence of the defendant, if the fact was relevant, was mere hearsay, and inadmissible.
The presence of the prosecutor, when Adams, a surveyor, ran the line separating his lands from the lands of the defendant, for the known purpose of ascertaining the true line, and whether any part of the fence, the matter of controversy, was on the lands of the defendant, are undisputed facts. If it be not true, as some of the ‘evidence indicates, that the prosecutor expressed his assent to and approval of the line, his silence is a fact indicative of his acquiescence, the significance or force of
The statute under which the prosecution is instituted has no reference to partition fences, as they are defined and regulated by the statute, in which there is joint or common , property by adjoining proprietors. Code, §§ 1361-75. It has reference to fences or inclosures which are the property of the prosecutor, and in which the defendant is without property or right. Hill v. State, 104 Ala. 64. The statute reads : ‘ ‘Any person, who unlawfully, maliciously, or negligently destroys, throws down, or breaks any fence or inclosure of another, and fails immediately to rebuild or repair the same, must, on conviction, be fined not less than twenty, nor more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not moive than six months ; and the fine goes to the injured party.” Cr. Code, § 3888. A fence, whether there be a permanent annexation to the soil, or if it be of rails so arranged as to constitute an inclosure, is a fixture, a part of the land and passing with the freehold. Mitchell v. Billingsley, 17 Ala. 391; Smith v. Carroll, 4 Iowa, 146; Seymour v. Watson, 5 Black. 555. The purpose of the statute is the protection of the owner of the soil, or of tenants or others having possession under him, against trespasses, which prior to the statute were redressed only by a civil action for the recovery of damages. The destruction of a fence by its owner, or the failure to rebuild or repair it, is not within the purview of the statute. The pivotal inquiry in the present case was, whether the fence was on the lands of the prosecutor or of the defendant. If on the lands of the defend
The second instruction is also erroneous. If, as the instruction predicates, the agreement between the defendant and the prosecutor was, that Lassiter and Bundy, having run the line from one of its terminal points to the other, should run and retrace it to the beginning point, there could not be substantial compliance with the agreement without the retracing, unless the parties dispensed with it by their assent, express or implied. The line may have been straight', but the retracing of it was as essential a part of the agreement as the first tracing or running.
The words of the statute are of plain, unambiguous meaning. The destruction or injury to the fehce or inclosure must have been either malicious, or unlawful, or negligent. The word maliciously involves no more than wantonness, or a willful disregard of right and duty. It does not necessarily import ill will, or a grudge against the owner, or a desire to be revenged upon him. Such malice, if the cause of the unlawful act, would aggravate the offense, but is not a necessary constituent of it. Unlawful, that the act was not done by authority of law ; or that it was an act the law prohibits; it is the converse of lawful. A malicious act is doubtless an unlawful act; but an unlawful act may be without the wantonness, -or willful, intentional disregard of right and duty, the characteristic of a malicious act. It may be
It is not necessary to pass separately on the several instructions requested, to the refusal, of which exceptions were reserved. What we have said, in connection with the exposition of the statute in Hill v. State, supra, will be a sufficient guidance for the court below on another trial.
The judgment is reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law.