Lee v. Stewart

• Decision Date: 09 October 1940
• Docket Number: 246.
• Citation: 10 S.E.2d 804,218 N.C. 287
• Parties: LEE et al. v. STEWART.
• Court: North Carolina Supreme Court

10 S.E.2d 804

218 N.C. 287

LEE et al. v. STEWART.

No. 246.

Supreme Court of North Carolina

October 9, 1940

Civil action to recover damages for trespass, quare clausum fregit.

Plaintiff Lee is the owner of a tract of farm land in Johnston County and the plaintiff Jernigan is the tenant living thereon and cultivating the same. On August 6, 1939, plaintiff Jernigan had just completed curing a barn of tobacco. The tobacco was "killed out" and there was just enough fire in the furnace to burn three or four hours as the heat dropped. The defendant, a neighbor who had been notified to stay off of the land of the plaintiff and "not bother nothing on my place", in the absence of both plaintiffs, went to the tobacco barn moved the tobacco about so as to make room for about 40 sticks of swell stem tobacco he wished to kill out. He then renewed the fire in the furnace. In moving the tobacco in the barn, which was dry from the heat of curing, it shattered and fell all about in the barn on the flues and at least one stick of tobacco fell. About 30 minutes after defendant left the barn fire was noticed in the barn which was completely consumed.

The defendant alleged in defense that before putting his tobacco in the barn of plaintiffs he procured the assent of the wife of plaintiff Jernigan; that he caused all leaves and foreign matter to be cleared off of the dirt floor of the barn around the flues and that the fire was not caused by any misconduct on his part.

At the conclusion of plaintiffs' evidence the defendant moved for judgment as of nonsuit. The motion was allowed and judgment of nonsuit was entered. Plaintiffs excepted and appealed.

Lyon & Lyon, of Whiteville, and L. L. Levinson, of Benson, for plaintiffs-appellants.

E. J Wellons, of Smithfield, for defendant-appellee.

BARNHILL Justice.

"Any invasion of the close of another *** constitutes a trespass". 26 R.C.L.

939. An entry on land in the peaceable possession of another is deemed a trespass, without regard to the amount of force used. Neither the form of instrumentality by which the close is broken nor the extent of the damages is material. 26 R.C.L. 938. Thus every unauthorized, and therefore unlawful, entry into the close of another is a trespass. Dougherty v. Stepp, 18 N.C. 371; Brame v. Clark, 148 N.C. 364, 62 S.E. 418, 19 L.R.A.,N.S., 1033, 16 Ann.Cas. 73; Frisbee v. Marshall, 122 N.C. 760, 30 S.E. 21.

Where a trespass is shown the party aggrieved is entitled at least to nominal damages. Little v. Stanback, 63 N.C. 285; J. L. Roper Lumber Co. v. Elizabeth City Lumber Co., 137 N.C. 431, 443, 49 S.E. 946; Hutton & Bourbonnais v. Cook, 173 N.C. 496, 92 S.E. 355; Lee v. Lee, 180 N.C. 86, 104 S.E. 76; Frisbee v. Marshall, supra; Dougherty v. Stepp, supra; Brame v. Clark, supra; Cooley on Torts, 2d Ed., p. 70. 1 Joyce on Damages, sec. 8.

Thus it appears that there is ample evidence of a trespass by the defendant which would entitle the plaintiffs to nominal damages at least and defeat a motion for judgment as of nonsuit.

But the defendant contends that he had the assent of Mrs. Jernigan and that his entry was by permission and not unlawful. This contention must fail for two reasons: (1) Mrs. Jernigan testified that she did not give permission but that she told the defendant his conduct would be dangerous; and (2) even had she given her consent there is no evidence tending to show authority so to do. Furthermore, while it is not entirely clear, the record indicates that Jernigan was a share crop tenant. If so, his...