Edgar v. State , 156 Ala. 147 ( 1908 )

DOWDELL, J.

The defendant, appellant here, was tried and convicted in the court below for a violation of section 5624 of the Criminal Code of 1896, which section reads as follows: “Any person, who unlawfully, maliciously, 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 more than six months; and the fine goes to the injured party.” This statute was construed by this court in the case of Wheeler v. State, 109 Ala. 56, 19 South. 993, wherein it was said by the court, speaking through Brickell, C. J.: “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 passes with the freehold. — Mitchell v. Billingsley, 17 Ala. 391; Smith v. Carroll, 4 G. Greene (Iowa) 146; Seymour v. Watson, 5 Blackf. (Ind.) 555, 36 Am. Dec. 556. 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 land of the prosecutor or of the defendant. If on the lands of the defendant, there could not, in any event, he a conviction. If it was erected by the prosecutor in ignorance of the true line, the erection was at his own peril, and he was. not entitled to remove it when the true line was ascertained.”

The case of Wheeler v. State, supra, was followed and approved by this court in the later case of Boyett v. State, 132 Ala. 23, 31 South. 551. There is no conflict between the case of Wheeler v. State, supra, and the-cases of Hill v. State, 104 Ala. 64, 16 South. 114, and Wallace v. State, 124 Ala. 87, 26 South. 932, as supposed by the Attorney General, and which two latter cases are relied on as sustaining the prosecution in the present case. Indeed, the case of Hill v. State, 104 Ala. 64, 16 South. 114, is cited in the case of Wheeler v. State, 109 Ala. 56, 19 South. 993. As Avas said in Wheelers Case, the purpose of the statute is the protection of the owner of the soil, or of tenants or others having possession under him, against trespassers. The question, therefore, of possession, is referred to the land on AAdiich the fence is built. In Hill’s Case and in Wallace’s Case, supra, the question was whether the property in the fence destroyed was properly laid in the indictment in the name of the tenant in possession of the land, and in harmony with the rule stated in Wheeler’s Case, above, it was decided that the offense was one against the possession, and hence was properly charged in the indictment as the fence of the tenant. We have no such question here, but here, as in the Wheeler Case, the prosecutor and defendant were coterminous proprietors, and the pivotal inquiry here, as there, was whether the fence Avas on the lands of the prosecutor or of the defendant. The trial court in the present case, both in its rulings on the introduction of evidence and in the instructions given to the jury, overlooked the rule of law in such a case, as laid down in Wheeler v. State, supra, and consequently was in error.

Section 3898 of the Code of 1896 exerts no influence on section 5624, under which latter section the present prosecution is had. Section 3898 treads as .follows: “When a survey of land is made by a county surveyor for the purpose of straightening or locating section or other lines, the owners of fences or buildings erected on or near the original or supposed lines shall not lose their right to the same, when the survey places the fences or buildings upon the lands of others.” This statute, we think, can mean nothing more nor less than that the party who erected the fence or building shall not lose his right to the material in the structure. Certainly it does not mean that he may continue to maintain it as a fence or building, for to do so would in effect be to appropriate to him the land or soil on which the fence or building was erected, and to take from the true owner his land without due process of law, a thing not within legislative competency. The purpose of the statute is to prevent one who innocently and through mistake erects a fence or building on the land of another from losing the material used in such structure. The effect of the statute is to convert the fence or building into personal property, which otherwise would be a fixture and become a part of the reality. Upon this theory, in Garrett v. Sewell, 95 Ala 456, 10 South. 226, an action in trover for the conversion of rails was upheld, where the defendant removed a fence which had been erected on or near the line and had been treated as a partition fence. The statute (section 3898) was cited in that case.

If A. should erect his fence on B.’s land 40 or 50 yards beyond the true line between him and B., as was proposed to be shown in the present case, but was not allowed, would any one doubt the right of B., to go and erect his own fence on his own land near the line, and thereby place the fence erected by A., within his (B.’s) inclosure, and having done so, to warn A., under the penalty of the statute, to keep off his (B.’s) land, and by so doing prevent A., from going upon the land, except, perhaps for the sole purpose of removing the rails in the fence, he (A.) had erected, and the right of property in which was reserved to him by section 3898. The evidence offered, moreover tended to show that the prosecutor was notified by the defendant, when he was erecting the fence in question, that he was placing it on the defendant’s land. Besides, there was no evidence showing any survey' for the purpose of straightening the line within the contemplation of section 3898. We are unable to see how this section has any application to the case in hand.

What we have said sufficiently indicates the errors committed by the trial court, and for which the judgment appealed from must be reversed.

Reversed and remanded.

Tyson, C. J., and Anderson and Denson, JJ., concur. Simpson and McClellan, JJ., dissent.