Horton v. Hensley, 23 N.C. 163, 1 Ired. 163 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 163, 1 Ired. 163

MALCOMBE HORTON vs. JOHN HENSLEY et al.

Possession alone is sufficient, to maintain the action of trespass against mere tori feasors. And, in such action, all procurers, aiders and abettors — nay, even those who are not privy to the commission of a trespass for their use and benefit, hut who afterwards, assent lo it — are e* qually liable with those who eommit the act of trespass.

This was an action of Trespass qua re clausum pregit, tried at Buncombe, on the last circuit, before his honor Judge Hall.

The declaration was for an injury done by the defendants to a mill dam, which the plaintiff alleged wap in his possession. -The dam was across a creek that ran through the land on which the plaintiff resided at the time of the alleged trespass. Upon the trial, it was in evidence that the defendants went to the plaintiff, and informed him that they were authorised to lay off a slope in the dam, and asked his permission to do so; upon which the plaintiff denied that they had any such authority; said that he gave them no permission to do any thing which the law did not authorise them to do; qnd that if they tore away the dam, he would sue them, The defendants thereupon proceeded to the dam; and, after a short conference, Gardner, one of them, marked out a slope upon it, when one of the other defendants asked Gardner if they should cut the (lam. To this enquiry Gardner replied, “ you know your own business; but I am afflicted with rheumatism, and can’t go into water.” The other defendants then cut away twenty-eight feet of the middle of the dam, down to the mud sill; and whilst this was doing, Gardner was sitting on the bank of the creek, in sight of the scene of operations, and saw, and remarked to another person in company with him, upon what was going on. During the time the defendants were engaged in cutting the dam, the plaintiff pame down to the place where Gardner was, and upbraided them for tearing away the dam, after pretending that they only designed to lay off a slope. To this Gardner replied, that he had done his best to prevent it; when the plaintiff said that he, Gardner, could have prevented it if he had tried, and that he was the cause of it. In another conversation, Gardner said that he could prove, by the person with whom he was sitting, that he -had nothing to do with it; whereupon one of the other defendants asked him if he did not agree to go his bob; to whiph Gardner, after some hesitation, replied, “ if you bring me in, I have two or three hundred dollars, whiph have not yet been spent.” It was further in evidence that the plaintiff had a field in cultivation, about two hundred yards from the dam; that he had been living on the land several years; that eight or ten years before the alleged trespass, there was a mill house connected with this dam, which was possessed and used by him in grinding grain for himself and neighbours; that the mill house was carried away by a freshet, eight or ten years before, and had never been rebuilt; that a few days before the dam was cut, the plain had worked upon, and repaired it, preparatory, as he deciared at the time, to rebuilding the mill. There was also evidence that the plaintiff had a fish trap at the dam, which was destroyed by the defendants when they cut the dam.

The defendants offered evidence to shew that the plaintiff’s design, in repairing the dam, was not to rebuild the mill, but more successfully to catch fish. They also offered in evidence a grant from the State to John G. Blount, dated in 1796, for the land on which the plaintiff lived. The plaintiff offered no evidence of title other than his possession; and the defendants did not pretend that they had any title themselves, nor any authority from Blount to enter upon the land.

The counsel for the defendants contended that the plaintiff was not entitled to recover, because he had shewn no possession; and, if entitled to recover any thing, he was entitled to nominal damages only, and requested the Court so to charge the jury.

His Honor instructed the jury, that if they inferred that the mill, before it was carried away, had been in the possession and use of the plaintiff, and that he repaired the dam a few days before the trespass complained of, with the view.of repairing the mill, these facts, especially when connected with • he evidence that the defendants had applied to the plaintiff for his permission to make a slope upon the dam, established such a possession in the plaintiff as would entitle him to recover; and that he had a right to recover damages to the extent of the injury which the dam had sustained; and that all the defendants who had aided, abetted, counselled or commanded the trespass, or who had assented to it after it was done, were equally liable with those who actually committed the act complained of. The plaintiff had a verdict andjudg-: ment against all the defendants, and they appealed.

No counsel appeared for either party in this Court.

Gaston, Judge.

We see no ground on which this judg-. ment can be impeached. It is not to be questioned but that possession alone is sufficient to maintain an action of trespass against mere tort-feasors. The evidence to shew possession in the plaintiff was pertinent, direct and uncontradicted. And in trespass, all procurers, aiders and abettors — nay, those who are not even privy to the commission of a tresspass for their use and benefit, but who afterwards assent to it — are, in judgxnent of law, principals. Com. Dig’t. Tres. C. 1,4 Inst. 317.

The judgment is affirmed.

Per Curiam. Judgment affirmed.