It being ascertained by the verdict that the fence, the removal of which gives rise to this prosecution, was altogether upon the defendant’s land, the case falls within the decisions made in State v. Mason, 13 Ired., 341, and State v. Williams, Busb., 197. In both of those cases, the indictment proceeded under this same statute, and the construction given to it by the court, is, that it was not intended to embrace a case of destruction of property by the owner thereof; but that to bring a case within it, the party accused must be shown to have been guilty of an actual trespass upon the property of another. We cannot see that the case is at all varied by the fact, that the fence was intended to be a dividing one between the fields of the defendant and the prosecutor. As found by the jury, it was built upon the land which subsequently became the property of the defendant, and was in his actual possession; and *628while he may have violated another statute (Bat. Rev., eh. 48, §§ 9, 10,) so as to' render him civilly liable, he cannot be proceeded against under an indictment.
No error. Affirmed.