civil action for damages. Both classes are torts; but those of one class only are crimes.

The criminal class embraces two kinds: One in which malice is an essential ingredient; the other in which it is not.

It is enacted in the criminal code, that " every person who shall maliciously injure, or cause to be injured, any property of another, or any public property, shall be deemed guilty of a malicious trespass, and be fined not exceeding twofold of the value of the damage done, to which may be added imprisonment not exceeding twelve months."1

Section 14 of the same code specifies certain trespasses which are crimes without the ingredient of malice; but the case at bar falls under section 13, above quoted.

Civil liability for a trespass does not necessarily depend upon a particular state of mind or heart at the time in the trespasser. Criminal liability, in one of the kinds of criminal trespass, does.

Did the facts in this case tend to establish a criminal trespass, under section 13?

The alleged trespass was committed by throwing down certain portions of fences.

A de facto neighborhood way had existed for years across the land of the prosecuting witness. There were three gates upon it for the accommodation of adjoining proprietors. In April, 1876, the prosecuting witness claiming to be the unincumbered owner of the land removed two of the gates and erected fences across the way in their stead. The defendant in the indictment, and a user of the way, doubting the right. of the prosecuting witness to fence it up, consulted counsel, and was advised that the act of fencing was wrongful, and that he had a right to take down sufficient of the fence to enable him to pass along the way, according to custom. He did so, and thereupon the prosecuting witness caused him to be indicted for malicious trespass, on which indictment the conviction above mentioned was obtained.

The history and character of the way are given in the following admitted facts:

"It is admitted by the defendant and State, that the pass-way, over which the defendant traveled at the time the fence was alleged to have been thrown down, was never laid out by anybody having competent authority to establish highways, that it never was worked by any supervisor, or by men in that road district under charge of a supervisor; that there has been a line of travel, marked by wagon tracks, from the south side of said section of land to the north side, varying at times from one place to another; that said passage way ran, varying somewhat, but in the general northern direction, and that said way has been used,

1 2 R. S. 1876, p. 462, sec. 13.

varying as above stated, for the convenience of Charles Lossen and Thomas Amos, and such persons who desired to visit them, or perform work for them, for the past sixteen years, and that Miller, the prosecuting witness, had knowledge of such facts of his grantors."

The controlling question in this case is, not whether the so-called highway across which the fences were erected that the appellant took down, was or was not a legal highway, but whether he took down said fences maliciously or mischievously; though it may properly be observed, that proof that it was a legal highway might have been a defence to the prosecution. The primary object of this prosecution, we may remark further, was not, or should not have been, to determine the legality of the highway. That question would more properly be determined in a civil suit, in which the parties might have stood upon more nearly equal grounds.1

We lay down this proposition as law applicable to the prosecution.

If the appellant believed in good faith, that he had a right to use said way, and used it in that belief, on the occasion charged in the indictment now before us, he was not guilty as charged in said indictment.2

We think the legitimate inference from the evidence is, that he so acted in the premises.

Counsel for the State argue that the fact that appellant took down the fences was clearly proved, and that malice will be inferred from the act. This is not the rule when the circumstances attending the commission of the trespass rebut the presumption of malice, however it may be in other cases.

The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

MISTAKE

BONA FIDE CLAIM OF RIGHT-CRIMINAL TRESPASS.

STATE v. CROSSET.

[81 N. C. 579.]

In the Supreme Court of North Carolina, June, 1879.

Bona Fide Claim of Right-Trespass. - One who enters upon the land of another under a bona fide claim of right is not guilty of a criminal offense. Held, therefore, that where an employe of a railroad company was ordered to fell trees upon land adjacent to its track which had been conveyed by the owner for right of way, he was not indictable for a willful trespass.

1 Windsor v. State, 13 Ind. 375; Dawson

v. State, 52 Ind. 478; Palmer v. State, 45 Ind. 388.

2 Palmer v. State, supra.

Indictment for misdemeanor under Revised Statutes,1 held at spring term, 1879, of Rowan Superior Court before SCHENCK, J.

The Attorney-General for the State; Kerr Craige for Miller; J. M. McCorkle, for defendant.

ASHE, J. The defendant was indicted for entering upon the land of one Jesse W. Miller, and blazing and felling trees on the same after having been forbidden so to do by the owner of the premises. At spring term, 1879, of Rowan Superior Court, the case was brought to trial by a jury, who returned a special verdict finding the following facts: "The defendant as section master of the Richmond and Danville Railroad Company entered upon the premises of one Jesse W. Miller after being forbidden so to do, and blazed the timber for the distance of one hundred feet from the center of the railroad track. Henry Miller, the ancestor of the said Jesse W. Miller, executed a deed to the North Carolina Railroad Company for the right of way, as the defendant alleges, and also for the use of one hundred feet of said lands measured from the center of said railroad track; but, as the State alleges, only covering the right of way and reserving to the grantor the use and enjoyment of the land up to the line of the railroad track." They further find as a fact that the defendant acted under orders of the North Carolina Railroad Company, and felled and destroyed the timber as aforesaid for the purpose of keeping leaves from falling on the railroad track and filling up the ditches and for the purpose of letting the sun shine on the track, and so as to enable the company to have a view of said track."

Upon the finding of the jury, His Honor rendered a judgment in favor of the defendant, from which the State appealed.

(Omitting another ruling.)

The defendant plead specially that he had the right to do the acts as stated in the bill of indictment, and relied for his defence upon the deed made by Henry Miller and others, to the president and directors of the North Carolina Railroad Company, conveying to said company the right of way, and the facts which were found by the jury in their special verdict.

In construing the deed, the first rule to be observed is to ascertain the intention of the parties to be gathered from the words of the deed and the purposes of the grant in contemplation of the parties. The deed was made by the ancestor of Jesse W. Miller, to the president and directors of the North Carolina Railroad Company, avowedly to secure to them the right of way for a railroad, to be constructed over and across his land, and the right to use any part thereof convenient and adjacent to said track which may be necessary for its construction; reserving the right to use the land up to said road, so that

1 ch. 132, sec. 116 (Battle).

he in no wise obstruct, or interfere, or endanger said road in track, culvert or ditches; and the grantor stipulated that he was not to put any building or other material within one hundred feet of the center of said road except at his own risk.

The deed having been made for the purposes indicated, it follows that every thing which was necessary to the use and enjoyment of the right of way, within the power of the grantor to convey, would also pass. The grant of a thing will include whatever the grantor had the power to convey, which is reasonably necessary to the enjoyment of the thing granted. And when a thing is granted, all the means to attain it and all the fruits and effects of it are granted also and shall pass inclusive together with the thing, by the grant of the thing itself, without the words cum pertinentiis, or such like words.2 It is evident from the words of the deed that it was the intention of the grantor that the grantee should have the right to use his land adjacent to the track for the necessary uses and requirements of the road, to the distance of one hundred feet from its center. And this construction is especially aided by the stipulation in the deed that the grantor will in "nowise obstruct, interfere, or endanger said road, in track, culvert, or ditches," and would put no building, etc., within one hundred feet of said road, except at his own risk. In this view of the case, we think the railroad company had the same use of the land of the grantor for the purposes of constructing, protecting, and repairing their road, as they would have had if the one hundred feet on each side of said road had been condemned in the mode prescribed in the charter. And if it had been condemned according to the provisions of the charter, the company would certainly have had the right to fell the trees along the track, within the one hundred feet, "to keep the leaves from falling on the track, and filling up the ditches, and for the purpose of letting the sun shine on the track of said road, and so as to enable the company to have a view of the track." 3 And the exercise of this right by the company would not interfere with the grantor's qualified right as reserved by him to use the land up to said road.

But aside from this view of the case, we hold that as the defendant entered upon the land by the orders of the railroad company who held the deed of Henry Miller, under whom Jesse W. Miller claimed for the right of way, his entry was bona fide and therefore not in violation of the provisions of the act of 1866, chapter 61, which was intended to prevent trespasers and "interlopers" after being forbidden by the owners from entering upon their lands, and does not apply to persons who enter under a bona fide claim of right.4

1 3 Washb. on Real Prop. 341.

2 Broom Leg. Max. 98.

3 Brainard v. Clap, 10 Cush. 6.

+ State v. Ellen, 68 N. C. 281; State v. Hawks, 66 N. C. 612.

MISTAKE-OFFICER-EXTORTION.

COMMONWEALTH v. SHED.

[1 Mass. 228.]

In the Supreme Judicial Court of Massachusetts, November Term, 1804.

An Officer taking a Fee Larger than he is entitled to, by reason of his honest mistake of his rights, is not guilty of extortion.

at

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This case was an appeal from the judgment of the Court of Sessions, rendered upon an indictment against the defendant which charged that he, being a deputy sheriff under the sheriff of this county, on the day of and then and there having a writ of execu. tion in his hands, committed to him to serve and execute according to the precept thereof, which writ was directed to the said sheriff or his deputy, and was in favor of one F. B. against J. B., with force and arms did then and there willfully and corruptly demand and receive of the said J. B. greater fees for the service of said execution upon the said J. B. than are allowed and provided by a law of this Commonwealth passed the 13th of Feb., 1796,1 to wit: the sum of three dollars and sixty-four cents, against the peace, etc., and the law in that behalf made and provided.

The defendant pleaded not guilty.

The amount of the execution, including damages and costs therein mentioned was 1053 dollars and 95 cents; and the judgment debtor, who was a witness in the case, testified that the defendant demanded and received from him 16 dollars and 4 cents for the fees of collecting; and it was agreed by S. Dana, for the prosecutor, and L. Bigelow for the defendant, that the legal fees for levying and collecting, including 30 cents for levying, amounted to 15 dollars and 56 cents, computed as follows, viz. :

The defendant proved that he, having arrested the judgment, was requested by him to allow him time to procure money to satisfy the execution, or such security for the payment of the contents of it as would be satisfactory to the judgment creditor; that he did allow him time

1 Stat. 1195, ch. 41.