The evidence shows that the railroad company was in the peaceable possession of the strip of ground in controversy prior to the time that Carmody entered and built his fence.
Carmody having invaded the possession of the company and erected his fence upon the land in their- possession, the principal question arising upon the record is, could the appellants as servants of the company enter in the manner they did and remove such fence without being guilty of a riot.
The first count of the indictment charges that the said Riley and others unlawfully, with force and violence, did break and deface the fence, etc.; while the second charges that the fence was broken unlawfully, and in a riotous and tumultuous manner, etc.
In Fort Dearborn Lodge v. Klein, 115 Ill. 191, it is said : “ It is clear, then, from the very words of the statute, that the paramount owner of a tract of land, having a present right of immediate possession, may enter the same in a peaceable manner, though occupied by another, and he will not, by reason of such entry, become a trespasser.”
. The word, “ entry,” occurring in the statute, is used in its appropriate legal sense, as signifying that remedy which the common law gives to the paramount owner of real property *143to redress, without legal process, the inj ury which he sustains when wrongfully deprived of the possession thereof by one having no right thereto.
The appellants having a legal right to enter, were not guilty of committing an unlawful act, and could not be guilty of the offense charged in the indictment, unless in removing the fence, as they lawfully might, they acted in a violent and tumultuous manner against the person or property of Carmody. We.think the evidence entirely fails to show that they thus acted.
Carmody says ° 65 On Saturday, when Riley came with the men, I was sitting on my porch, and when I went down to where they were at work, they were digging post holes where the old Davis fence had stood. I had them arrested and started this prosecution. The railroad men were very quiet. There was no loud talking and no disturbance.”
The evidence entirely failed to sustain the indictment and a new trial should have been awarded. The judgment of the County Court will be reversed and the cause remanded.
Reversed and, remanded