Emry v. Roanoke Navigation & Water Power Co.
| Citation | 16 S.E. 18,111 N.C. 94 |
| Parties | EMRY et ux. v. ROANOKE NAVIGATION & WATER POWER CO. |
| Decision Date | 01 November 1892 |
| Court | United States State Supreme Court of North Carolina |
Appeal from superior court, Halifax county; GEORGE H. BROWN, Judge.
An action by T. L. Emry and wife against the Roanoke Navigation & Water Power Company to recover damages for buildings destroyed by fire through defendant's negligence. From a judgment for defendant, plaintiffs appealed. Judgment affirmed.
Where a lessee refuses to remove his buildings from the land after the expiration of a six-months notice agreed upon, and forcibly prevents the lessor from removing them, the lessee is a willful trespasser.
R. O Burton and L. P. McGehee, for appellants.
Thos N. Hill and W. H. Day, for appellee.
The argument before us was based upon the assumption that the defendant, in conducting certain blasting operations on its own land, was guilty of negligence by reason of its failure to exercise ordinary care; and that its liability for the same can only be avoided by establishing contributory negligence on the part of the plaintiffs. In our opinion, the true principle upon which the case is to be determined lies quite beyond that discussed by counsel, and involves a consideration of the question, not whether there was contributory negligence, but whether the defendant was guilty of any negligence whatever for which, under the circumstances, it is liable to the plaintiffs. While there may be some shades of difference in the various definitions of negligence, all of the authorities agree that its essential element consists in a breach of duty, and that, in order to sustain an action, "the plaintiff must state and prove facts sufficient to show what the duty is, and that the defendant owes it to him." 1 Shear. & R. Neg. § 8; Beach, Contrib. Neg. 6; Thomp. Neg. preface. A legal duty has been well defined by Dr. Wharton as "that which the law requires to be done or forborne to a determinate person or to the public at large, and is correlative to a right vested in such determinate person or in the public." Whart. Neg. § 24. 16 Amer. & Eng. Enc. Law. 412, and the numerous cases cited. This much being premised, we must now ascertain what duty, if any, was imposed by law upon the defendant in the present action, and this involves an inquiry into the relation of the parties in respect to the buildings for the accidental destruction of which the action is brought. It is conceded that the defendant was the owner of the land upon which the buildings were located, and it appears that in January, 1887, a suit between the present parties was settled according to the terms of the following agreement, to wit: We cannot concur in the contention of the plaintiffs that under this agreement they were entitled to keep their buildings upon the premises without the payment of rent until the defendant had improved the canal so as to increase the supply of water. The agreement contains no such provision, and we feel that we would be doing violence to the ordinary rules of interpretation by so extending its terms beyond the meaning of the plain and unambiguous language employed. The argument can derive no support from extrinsic circumstances, as it appears that the plaintiffs had been using the water of the canal to some extent by keeping it cleaned out, and that, shortly after making the agreement, they proposed to continue the use of the same. There was therefore an existing subject upon which the agreement could presently operate, and it is with reference to this as well as to any contemplated improvement that it must be construed. If the actual contract was such as is contended, it is to be regretted that it was not incorporated into the written agreement, as it seems that the conduct of the agent of the plaintiffs was influenced by a reasonable misapprehension of the legal effect of the said instrument. It is further insisted that by the terms of the agreement it was the duty of defendant to entertain in good faith a proposition to fix the rental value of the water and land therein mentioned; and that, if it refused to do so, it had no right to require the removal of the buildings, etc. Granting this to be a correct interpretation of the agreement, we are unable to find anything in the testimony which discloses that the defendant arbitrarily or in bad faith declined to consider any such proposition of the plaintiffs. On the contrary, the plaintiffs' agent (who seems to have had full control and management of the whole matter) explicitly testified that before the notice to remove was served on him, the defendant's attorney demanded that the plaintiffs enter into a new contract of rent, and that, failing to do so, they should remove the buildings. The said agent further testified that, in response to the proposition, he replied as follows: "I stated that I would go on as I had been, and keep the canal cleaned out for the use of the land and water; but I could not pay rent, as the canal was in bad repair, and supplied scarcely any water." The witness also stated that the defendant's attorney declined to accept his proposal, and that they had no further negotiations. Here, then, was a distinct offer to "enter into a new contract for rent," and this offer was declined, except upon the terms demanded by the plaintiffs. We fail to perceive how the refusal to accept these terms can be considered as evidence that the defendant was unwilling to make a bona fide effort to agree upon a reasonable rental value. If, under the contract, it was the duty of the defendant to make a fair effort to agree, it was surely released from that obligation after the plaintiffs, without hearing any proposal from the defendant, had expressly refused to accede to any other but the previously existing terms. There having been a failure to agree as to the rent, the defendant had a right to insist upon the removal of the buildings upon six months' notice, as provided in the agreement, and it was not bound to entertain any further propositions on the part of the plaintiffs. Accordingly, a notice to remove the buildings was given, pursuant to the agreement, on the 3d of February, 1887; but, notwithstanding this notice, the plaintiffs failed to remove the same, and kept them on the defendant's land after they knew that the defendant had commenced its blasting operations, and until they were accidentally destroyed by fire in September, 1890. As early as the 6th of June of that year the defendant complained of the plaintiffs' failure to comply with the notice, and at the same time stated that, as the land occupied by the buildings was absolutely necessary for its use, it would proceed to remove them unless the plaintiffs did so in 11 days. At the expiration of that time the defendant attempted to remove the buildings, but was prevented by the plaintiffs from doing so by means of a shotgun. Without pausing to consider whether the long and unreasonable delay to remove the buildings did not have the effect of vesting the same in the defendant as a part of its freehold, (a point which was waived by the answer,) it cannot be questioned that, in their failure to remove them after said notice, and especially in the violent prevention of the defendant from exercising its right of removal, the plaintiffs were trespassers upon the lands of the...
To continue reading
Request your trial