(December Term, 1835.)
Every unauthorized intrusion into the land of another, is a sufficient trespass to support an action for breaking the close, whether the land be actually enclosed or not. And from every such entry the law infers some damage; if nothing more, the treading down the grass or shrubbery.
THIS was an action of TRESPASS QUARE CLAUSUM FREGIT, tried at Buncombe on the last Circuit, before his Honor Judge MARTIN. The only proof introduced by the plaintiff to establish an act of trespass, was, that the defendant had entered on the unenclosed land of the plaintiff, with a surveyor and chain carriers, and actually surveyed a part of it, claiming it as his own, but without marking trees or cutting bushes. This, his Honor held not to be a trespass, and the jury under his instructions, found a verdict for the defendant, and the plaintiff appealed.
Mendenhall for the plaintiff, contended, that every unwarrantable entry on another man's soil, is considered a trespass by breaking his close: for that in contemplation of law, every man's land, is separated and set apart from his neighbor's, by either a material, or invisible and ideal boundary; and that every entry carries with it some damage, if no other, the treading down and bruising the herbage and shrubbery. That whenever a man has a right to enclose his estate, by a real substantial fence, the law regards it as already enclosed against the unauthorized intrusion of his neighbor. In illustration and support of these positions, he cited 3 Bla. Com. 209. 6 Bac. Abr. 581, title Trespass. McKinzie's Executors v. Hulet, N.C. Term Rep. 181. Hammond's N. Prius, 151, 152. Dyer, 225, b. pl. 40.
No counsel appeared for the defendant.
— In the opinion of the Court, there is error in the instructions given to the jury. The amount of damages may depend on the acts done on the land, and the extent of injury to it therefrom. But it is an elementary principle, that every unauthorized, and therefore unlawful entry, into the close of another, is a trespass. From every such entry against the will of the possessor, the law infers some damage; if nothing more, the treading down the grass or the herbage, or as here, the shrubbery. Had the locus in quo been under cultivation or enclosed, there would have been no doubt of the plaintiff's right to recover. Now our Courts have for a long time past held, that if there be no adverse possession, the title makes the land the owner's close. Making the survey and marking trees, or making it without marking, differ only in the degree, and not in the nature of the injury. It is the entry that constitutes the trespass. There is no statute, nor rule of reason, that will make a wilful entry into the land of another, upon an unfounded claim of right, innocent, which one, who sat up no title to the land, could not justify or excuse. On the contrary, the pretended ownership aggravates the wrong. Let the judgment be reversed, and a new trial granted.
PER CURIAM. Judgment reversed.