State v. . Hovis , 76 N.C. 117 ( 1877 )

It was decided in State v. Graves, 74 N.C. 396, that rails made into a fence are real property and that removing them would not be a forcible trespass on personalty nor larceny at common law. This principle however does not affect the present case, as the offence charged is embraced by the express terms of § 93, ch. 32, Battle's Revisal.

The prosecutor was in the actual quiet possession of the fence around his field in cultivation and had been for more than a year when the defendant pulled it down. This possession could not be disturbed by any adverse claimant in this "short hand" way, because it would, in most cases, lead to some other and more serious breach of the peace and good order of society.

If the defendant has a better title than the prosecutor to the premises or to the possession thereof, he can assert it by due course of law, but he cannot do so by violating the criminal law of the State. No error is assigned by the defendant and we see none upon the record. In such cases the judgment must be affirmed. Swepson v. Summey 74 N.C. 551. There is no error.

Let this be certified, to the end that further proceedings may be had according to law.

PER CURIAM. Judgment affirmed.