Opinion
June Term, 1842.
1. It is not reasonable, and therefore not legal, to presume a more extensive license than is essential to the enjoyment of what is expressly granted.
2. Therefore, a license to enter a man's land for the purpose of taking off corn must be construed a license to enter by the usual mode of access provided for such purpose, as through the gate or other appropriate entrance.
3. He who abuses a legal license is a trespasser ab initio.
4. Where a man's hogs get on another's land, if he lets down a fence to drive them out, instead of driving them through a gap or gate, when there are such, he is guilty of a trespass.
APPEAL from Bailey, J., at Spring Term, 1842, of YANCEY.
Alexander for plaintiff. (249)
No counsel for defendant.
This was an action of trespass quare clausum fregit. The facts were that the plaintiff had possession of a small tract of land, which was inclosed and had been in cultivation, and that he had permitted the witness, who had worked with him in the crop, to put his corn in a house on 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 field 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 (248) 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 inclosed it; the ends of the new fence did not meet the old fence; and in this field was a house occupied by 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 farther 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 him to get it whenever he thought proper, and he, the witness, had sold to the defendant a part of said corn, the defendant would have a right, in company with the witness, to enter the field, proceed to the house and get the corn 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 injury to the freehold. As to the second alleged trespass, if the plaintiff erected the new fence, although it did not meet 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 wrongdoer. The jury returned a verdict of sixpence 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.
In our opinion, both of the questions of law raised on the trial of this case were against the defendant. The license under which he sought to justify the first alleged trespass was an implied or presumed license 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 license 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 for 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 and 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 $100 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., ch. 48), is an inquiry 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 license without unnecessary damage to the (250) plaintiff. To pull 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 license is a trespasser ab initio.
PER CURIAM. No error.
Cited: Bear v. Harris, 118 N.C. 481.