dissenting: I cannot agree to tbe ruling in this case, believing it to be contrary to every case heretofore decided by this Court on tbe law of forcible trespass. John T. Dula was in possession of tbe land be claimed as bis own, not being within tbe railroad’s right of way. Whether be bad title or legal claim to tbe land made no difference. Forcible trespass is tbe invasion of tbe possession of another violently or with a strong band; tbe title is never drawn in question. Tbe possession alone is considered. “Right to property-or right of possession is not material, but only tbe fact of possession.” S. v. Bennett, 20 N. C., 43; S. v. Pollock, 26 N. C., 305; S. v. Toliver, 27 N. C., 452; S. v. McCanless, 31 N. C., 375; S. v. Laney, 87 N. C., 535. Demonstrative force may be by a multitude or with weapons. S. v. Ray, 32 N. C., 29; S. v. Armfield, 27 N. C., 207; S. v. McAdden, 71 N. C., 207 ; S. v. Barefoot, 89 N. C., 565. Tbe force is sufficient if party in possession must yield to avoid a breach of tbe peace. S. v. Pollock, 26 N. C., 305. *756In this case the evidence is that John T. Dula was in possession of the land and had fenced it to keep intruders out. He was at least there asserting his right of possession, and not one had the right, not even in the name of the sovereign power of eminent domain, to molest him or make him afraid. If this band of men was resisted in the pursuit of a lawful purpose, they should have applied to the law for redress, and not to force and high-handed violence. This has been the law from time immemorial. It was always the law, and is the only one that can prevent lawlessness and breaches of the peace. It was ordained for that purpose, to prevent men from taking the law into their own hands.
Walter Jones, the head man, applied to an officer, Hill McNeill, it is true; but he proceeded illegally and was himself a trespasser in a criminal sense. He had no warrant, and said so, having told the prosecutor that he had none; and yet he advanced upon the latter as if he were panoplied with all the authority and was acting under the majesty of the law. And he was nothing but a plain and defiant violator of its mandate! He had no more power than any other civilian, clothed with no official authority. This makes S. v. Yarborough, 70 N. C., 250, directly applicable. In that case four persons with just as much, if not more, right than these defendants had, and acting under a void warrant, attempted to eject another person from land in his possession, and this Court held, and it could- not have held otherwise, that they were guilty of forcible trespass or forcible entry. S. v. Davenport, 156 N. C., 596, is exactly in point, and is this case in principle.
I know of no law which hedges these defendants about with special privileges and immunity because they were, at the time, locating the right of way of a railroad company, or that exempts them from punishment for violating the criminal law in doing so. Neither the title to the land nor the claim of the defendants that they had a right to enter upon the land, however well founded, is in question. The offense is committed if there is actual possession by the prosecutor, or his agent, and an entry by defendant with a strong hand. S. v. Davis, 109 N. C., 809; S. v. Woodward, 119 N. C., 836; S. v. Webster, 121 N. C., 586; S. v. Elks, 125 N. C., 603; S. v. Talbot, 97 N. C., 494; S. v. Lawson, 98 N. C., 759. It is impossible to distinguish this case from S. v. Davenport, supra, upon any rational ground. You cannot differentiate two cases which are exactly alike — which are not only similar, but the same. The mere fact that these defendants were acting for a railroad company in delineating its right of way does not create any distinction, and certainly no difference, between the two cases, except that it makes this a stronger case, if anything, against defendants, because, inasmuch as they were acting under authority of the law, as now claimed by them, they should have been the more careful to observe and keep the law.
*757My conclusion is that Judge Harding was right in submitting the case to the jury. I am further of the opinion that the defendants were guilty on their own showing, and that the judgment should be affirmed.