Opinion by

dames McAuley was sued before a j ustice of the peace for an assault and battery on Leonard Farr. The defendant was found guilty and fined five *436dollars. He took an appeal to the district court, where a verdict of guilty was again returned and a fine of fiv* dollars assessed.

On request in behalf of the state, it appears that th» court instructed the jury that “ if Farr had a right tomaka improvements on the farm that would not interfere with the farming operations of McAuley, he had a right to enter on the farm for that purpose, and defendant had no right to resist him by force, if he came to make improvements, unless he actually commenced making improvements that interfered with said farming operations : and that if Farr had a right to enter on the farm for the purpose of making improvements, he had constructive possession, so far aa relates to the making of said improvements.” It is now asserted that the court erred in giving this instruction. I he proposition is self-evident, that if a person has a right to enter a close for any given purpose, he cannot be treated. as a trespasser unless he abuses that right. It does not appear from the record that Farr had attempted to go beyond the limit of his right. In that particular the argument of counsel is not sustained by the record.

The defendant below had no right to use force unless it was really necessary to protect his possession or to prevent an injury to his property. A fear or mere suspicion that Farr might encroach upon his possession could not justify the assault.

Judgment affirmed.