DISSENTING OPINION OP
PERRY, J.At the request of the plaintiffs and 'against the defendant’s objection the following instructions were given:
No. 1. “1 instruct }rou that a person in the actual, peaceable possession of premises is presumed to be there rightfully; and no one has a right to go upon the premises and commit acts of trespass thereon by forcibly ejecting such person, so in possession, or removing his property therefrom, against his will, unless the person so entering has some legal process from a Court of competent jurisdiction authorizing him so to do.
“And I further instruct you that the defendant in this case has no such legal process, and if you fin d_ therefore that acts of trespass were committed by the defendant on the property of the plaintiffs, your verdict must be for the plaintiffs.
No. 8. “I instruct you that if you believe from the evidence •that the plaintiffs in this case were in actual and peaceable possession of the lands in question or any part thereof; and that the defendant committed acts of trespass thereon as defined in these instructions, your verdict must be for the-plaintiffs.
No. 9. “I instruct you that in order to maintain an action for trespass, it is only necessary for the plaintiffs to prove that they were in the actual and peaceable possession of the property *615upon which the trespass is alleged to have been committed; and that the defendant unlawfully interfered with such possession.
No. 10. “I instruct you that a person has no right to desecrate the burial places of the dead, when those burial places are in the actual and peaceable possession of another; and if you find from the evidence that the defendant desecrated such burial places on the lands in the possession of the plaintiffs, you are at liberty to award the plaintiffs exemplary or punitive damages.
“Provided it appears also that plaintiffs held, considered and regarded such burial places as sacred and kept and preserved them on lands in their possession as such burial places.
No. 11. “I charge you as a matter of law that it would be no good and sufficient excuse for acts of trespass committed by the defendant on the property in possession of the plaintiffs, that the defendant may have thought that the lands in question belonged to it, the defendant. If the plaintiffs were wrongfully in possession of the lands, and the defendant was entitled to such possession, the law provides a way for the defendant to obtain possession, but the law does not allow the defendant to enter upon the lands of the plaintiffs and commit acts of trespass thereon merely because the defendant thought it had a right so to do.
“But if defendant did thus trespass believing that it had a right to thus take possession of said lands, its acts were not done with an evil intent, and this would mitigate the measure of damages.
No. IS. “If you find from the evidence in this case that the defendant entered upon the lands in question dispute as shown by the evidence, or any portion of them under a claim of title, or deed, that such entry was, in law, wrongful unless such entry was made within the period of ten years from the date the title or right to such land was first vested in the party making such entry, the defendant, and within ten years from the time the right to such land accrued to the predecessor or predecessors, if any, under whom such right is claimed by the defendant, the giving of these instructions is assigned as error.”
These instructions were apparently given on the theory that if plaintiffs were in peaceable possession at the time that defendant entered and ejected them, the defendant is liable, *616irrespective of whether it had title or not, and that to make such an entry lawful the true owner must be armed with judicial process. Such is not the law. It is true that in trespass the title need not be tried; but it may be. A showing of peaceable possession on the part of the plaintiff is prima facie sufficient to entitle him to recover against a mere intruder. The party sued maj, however, defend either by denying the acts of entry or dispossession or, admitting these, by justifying them, by showing that they were rightfully done. The law, of course, does not encourage the commission of a breach of the peace. None is shown to have been committed in this instance. But the true owner of land cannot be held liable in damages for taking possession of that which is his own and which is in the wrongful though peaceable possession of another.
It may be that the use in Nos. Y, 8 and 11 of the word “'trespass,” defined as it was in No. 4, renders the instructions technically correct, but it could only appear so, even to a mind trained in the law, after careful re-reading and study. A jury of laymen would understand it, and not unreasonably, as an instruction to find for plaintiffs if they found the facts of peaceable possession in plaintiffs and forcible ejectment or removal of property by defendant unarmed with judicial process. The same is true of the use of the word “unlawfully” in No. 9. Upon being told, in No. 11, that “if the plaintiffs were wrongfully in possession of the lands and the defendant was entitled to such possession, the law provides a way for the defendant to obtain possession,” what could the jury infer but that a mere entry was not that way and that to save itself from liability for damages the defendant, although the true owner, should have first instituted judicial proceedings? No. 10 has not even the merit, such as it is, of using the technical words “trespass” or “unlawful.” It is unmistakably a direction to find for plaintiffs if they had peaceable possession and if thereupon defendant, although the true owner, made an entry. The evi*617dence was practically undisputed that plaintiffs were in peaceable possession immediately prior to tbe entry by defendant and that defendant had procured no judicial process for its protection. Under the instructions given, the plaintiffs’ counsel had the right to argue to the jury that upon this state of the evidence and under the instructions there was but one course to follow, and that to find a verdict for plaintiffs. That I am not mistaken as to the meaning of these instructions as understood and intended by the presiding judge and counsel at the trial is further indicated by the fact that plaintiffs’ attorney actually contends in this court, in justification of the instructions, that the law is that a true owner may not without rendering himself liable for damages enter upon his land in the peaceable but wrongful possession of another unless armed with judicial process. Nor is there anything in the remainder of the charge to cure these errors. They cannot be said to have been harmless, but may well have been responsible for the verdict rendered.
Instructions were, indeed, given defining to some extent adverse possession and directing the jury to find for the plaintiffs if it found that plaintiffs had acquired title by adverse possession and similarly if it found that the defendant had no title. These, however, merely presented other phases of the matter in the alternative. The charge as a whole was the equivalent of this: (1) “If you find that plaintiffs have acquired title by adverse possession and that defendant entered, verdict for plaintiffs; (2) if you find that the defendant had no title and entered, verdict for plaintiffs; (3) if you find that plaintiffs were in peaceable possession and that defendant had title and entered, unarmed with judicial process, verdict for plaintiffs, or (4), in other words, if plaintiffs were in peaceable possession and defendant entered, then, whether or not defendant liad title, verdict for plaintiffs, provided only you find that defendant had no judicial process authorizing the entry; a *618true owner cannot recover possession of his own land without liability for damages unless he first institutes judicial proceedings for the purpose.”
It is suggested that the fact that plaintiffs’ request No. 6, reading, “I instruct you that the person in the actual and peaceable possession of land will be presumed to be the owner, even in the absence of any proof of title and he may recover damage for trespass against any one who -wrongfully invades his possession,” was given without objection on the part of defendant cures the error. I cannot take this view. That instruction is somewhat clearer in its statement that the entry must be wrongful in order to justify a verdict for plaintiff; and while far from satisfactory it may be that standing alone the giving of it would be harmless and not require a new trial. The defendant cannot, I think, be charged with having practically waived objection to Nos. 1, 8, 9, 10, 11 by failing to object to No. 6. The latter is more general and the others more specific. No. 6 standing alone might pass unnoticed by the jury and cause no harm. The others, however, make clear and reiterate and emphasize the view that unless defendant was protected by judicial process his entry was wrongful irrespective of the true state of the title.
Another suggestion made in defense of No. 10 is that since the evidence would require a finding that the graves referred to in the evidence were located some little distance within the outer or southerly boundary of the land in dispute there could be no desecration of them without the defendant having first committed a “trespass” upon the land. The weakness of that position is that the defendant may have passed over the intervening strip just referred to, just as it might have desecrated the burial places, without being guilty of any trespass, for upon the evidence the jury could have found that the title was in the defendant and that the plaintiffs had not acquired any either by deed or by adverse possession. The evidence was sufficient *619to support, but not such -as to necessarily require, a finding of adverse possession in plaintiffs.
In No. 18 the jury was instructed that defendant’s entry was in law wrongful unless made within ten years “from the date the title or right to such land was first vested” in the defendant or his predecessors. This, of course, is not the law. One may take a deed of a piece of land and receive the title under the same and omit to enter into possession for twenty years thereafter, and yet not lose his title or right of entry provided only that no one else occupies the land adversely for more than ten years preceding the entry. See, for example, Rose v. Smith, 5 Ilaw. 377, 378, 379. What the judge should have said was that the entry was wrongful if made after an adverse holding by the plaintiffs for more than ten years preceding the entry, or, in other words, if made more than ten years after the right of action accrued. But he did not say that, and while but few words need have been changed in order to make the instruction correct the difference in meaning between the two forms is very-great and the instruction as given clearly erroneous. The evidence was undisputed that the only deed under which defendant- claimed was executed and delivered' in 1894 and that its entry was in 1908, and the instruction, therefore, was the equivalent of a direction to find for the plaintiffs. Nothing is contained in the other instructions given which to my mind cures this error.
Whether or not other errors are disclosed by the record 1 need not say. In my opinion assignments Nos. 2, 3, 4, 5, 6 and 11 should be sustained, the verdict set aside and a new trial granted.