Gardner v. Rowland, 24 N.C. 247, 2 Ired. 247 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 247, 2 Ired. 247

THOMAS GARDNER vs. HENRY ROWLAND.

It is not reasonable, and therefore not legal, to presume a more extensive licence than is essential to the enjoyment of what is expressly granted.

Therefore a licence to enter a man’s land for the purpose of talcing off corn must be construed a licence to enter by the usual mode of access provided for such purpose, as through the gate or other appropriate entrance.

He who abuses a legal licence is a trespasser tib-inilio.

Whpre a man’s hogs get ott another’s land, if he lets down a fence to drive them out, instead of driving them through a gap or gate, when thete are such, he is guilty of a trespass.

An appeal from the Superior Court of Law of Yancy county, at Spring Term, 1842, his Honor Judge Bailey presiding. This was an action of trespass quare clausum fregit. The facts were, that the plaintiff had possession of a smalt tract of land, which was enclosed and had been in cultivation, and that be had permitted the witness, who had ■worked with him in the crop, to put bis com in a house ora said land — that the house was locked and the key given by the plaintiff to the witness to get his corn out, whenever he desired — that the witness let the defendant have some of this corn, who went for it in his wagon — that the witness told the defendant there were two ways of going into the fie!d to the house, one at the end where there were bars, and the other on the side of the field — that if he came in upon the side of the field, the plaintiff would not like it — that he, the witness, would prefer that he should go to the bars — that the defendant went in at the side of the field with his wagon to the house, got his corn, and returned the same way, and the witness helped him to put up the fence. There was another field, which' had been in cultivation, about a mile from the plaintiff’s house, a part of which had an old fence around it — the plaintiff had put up a new fence upon this land, but had not entirely enclosed it, the ends of the new fence did not meet the old fence — and in this field was a house occupied jjy a woman by permission of the plaintiff. The defendant’s hogs got into this field. He let down the new fence, which had been erected by the plaintiff, and turned them out. He could have driven them out of the field at either end of the new fence, where it did not join the old fence, but that would have been further than where he turned them out.

The court charged the jury as to the first alleged trespass, that, if the witness had his corn in the plaintiff’s house by the permission of the plaintiff, and the key had been given up to hitn to get it whenever he thought proper, and he, the witness, had sold to the defendant a part of the said corn, the defendant would have a right in company with the witness to enter the field, proceed to the house and get the com and return, and that he would not be a trespasser, although there were bars through which he might have gone, and he took down the fence and went in upon the side of the field, provided he did no unnecessary iujury to the freehold. As to the second alleged trespass, if the plaintiff erected the new fence, although it did meet not the old fence at either end, and the defendant let down this fence and turned his hogs out, it would be a trespass on the plaintiff’s possession, and would entitle him to recover nominal damages of the defendant as a wrong doer. The jury returned a verdict of six pence damages. The defendant moved for a new trial, on the ground of misdirection in the court in stating to the jury, that the letting down the new fence erected by the plaintiff, although it did not meet the old fence, and entirely inclose the field, would be a trespass on the plaintiff’s possession. The motion was refused, and, judgment having been rendered for the plaintiff according to the verdict, the defendant appealed.

Alexander for the plaintiff.

No counsel for the defendant.

Gaston, J.

In our opinion, both of the questions of law raised on the trial of this case were against the defendant. o • The licence, under which he sought to justify the first alleged trespass, was an implied or presumed licence to enter the plaintiff’s close, in order to carry off the corn, which the plaintiff had permitted to be there deposited. Now it is not reasonable, and therefore not legal, to presume a more extensive licence than is essential to the enjoyment of that which was expressly granted. The permission to keep the corn on the plaintiff’s premises cannot be fully enjoyed without the liberty of ingress and egress to and from the place of deposit, for the purpose of watching over, or disposing of, the corn so deposited. But a permission to pass over the plaintiff’s premises for a particular purpose, must be understood to authorize an entry by the mode of access provided lor such purpose, that is, through the gate or other appropriate entrance into the inclosure, and not by a breach of the fence, the very purpose of which is to defend and shut out the premises against all persons but the owner.

As to the second alleged trespass, if its character is to be tested by common-law principles, it was clearly without justification. Any entry upon the land of another, against his will an,d without his authority, is a trespass; and, by the common-law, the owner of beasts or stock (as they are termed with us) is bound at his peril so to keep them, as to prevent their trespassing upon the land of another, whether it be in fact inclosed or uninclosed. How far this obligation may be changed by reason of the enactment of our Legislature, whereby every planter is required under the penalty of one hundred dollars to keep a sufficient fence about his cleared ground under cultivation, and a remedy is given to him for damage done upon his inclosed ground by the stock of another, provided it shall appear that his fence is sufficient, (see Rev. Stat. c. 48,) is an enquiry which it is unnecessary now to prosecute. For admitting, as appears to have been assumed below, that no trespass was committed by reason of the defendant’s hogs wandering over the plaintiff’s close, and that the defendant might lawfully enter thereon for the purpose of removing them, he ought to exercise this licence without unnecessary damage to the plaintiff. To down the plaintiff’s fence, when there were gaps through which the hogs might be driven, seems to us an act of this kind, and, therefore, not warranted by any construction of the law. He, who abuses a legal licence, is a trespasser ab initio. Let the judgment below be affirmed.

Per Curiam, Judgment affirmed.