State v. Sullivan

The opinion of the court was delivered by Brewer, J.:

1. Review of trial, where facts’are agreed. agreed. 2. Removal of fence-when no trespass, This case was tried by a judge pro tem., and without a jury, upon an agreed statement of facts. The charge was, that defendant voluntarily and unlawfully threw down a fence other than that “that led into his own inclosure,” and was brought under § 2 of the “ act to prevent certain trespasses,” Gen. Stat., 1096. Defendant was found guilty, and sentenced to pay a fine of five dollars, from which sentence he has appealed to this court. As this case was tried uPon an agreed statement of facts, and without the introduction of witnesses, it is presented to ug veiy much as it was to the trial court. Those

considerations so often adverted to, which uphold the decision of the lower tribunal in doubtful cases, have no application here. We can act upon it in almost the same manner as though it were an original case in this court. Kansas Pacific Rly. Co. v. Butts, 7 Kas., 308 . Do the facts as agreed upon show a violation of this statute, by the defendant ? It seems to us, clearly not. The facts are substantially these: For months prior to the alleged misdemeanor, defendant and one Kennedy were occupying the same tract of land, and contesting the right to purchase it from the government. A trial in the local land-office had resulted in favor of Kennedy, but an appeal therefrom was still pending before the Commissioner of the General Land Office. Kennedy had a field fenced on the south side of the tract. On the north, defendant had built a house and was occupying it. This house was about forty yards from a county road, which ran along the west line of the tract. Around *172 this house defendant had built a fence, the west line of which was on the county 'road, through which, at a place where was a “slip-rail gap, or loose rail,” he .passed to and from his house. About a week or ten days before the commission of the alleged offense, Kennedy built a fence so as to entirely inclose defendant’s house and field, the west fence of which along the county road was- only eighteen inches to two feet from defendant’s fence. In building this fence he put a post opposite the center of the “slip-gap” above referred to, to which he nailed some rails or slats. Defendant knocked off the slats, and pulled up the post, and passed in and out with his team and wagon. Kennedy replaced the post and slats, and defendant a second time removed them, and this removal was the offense charged. In this there was no criminal offense. It did not come within the statute. The fence thrown down was between his house and the public road, placed across the very way he had been accustomed to pass in and out from his home. It was not therefore, in the language of the statute, one “other than those that lead into his own inclosure.” If this conviction be right, any man may have his homestead fenced in by an outer fence, and be thus debarred ingress and egress. Such is not the law. The contest between Kennedy and defendant cannot thus be carried on through the aid of the criminal law. With equal propriety might defendant surround Kennedy’s field with an outer fence, and then ask to have him punished criminally if he broke it down to get into his field.

The judgment will be reversed, and the case remanded with instructions to discharge the defendant.

All the Justices concurring.