Blackburn v. Bowman

• Citation: 1 Jones 441,46 N.C. 441
• Court: North Carolina Supreme Court
• Decision Date: 30 June 1854
• Parties: S. S. BLACKBURN v. E. BOWMAN.

1 Jones (NC) 441

46 N.C. 441

S. S. BLACKBURN

v.E. BOWMAN.

Supreme Court of North Carolina.

June Term, 1854.

Where a person occupying land adjoining another, and in ignorance of the true boundaries of the tracts, trespasses upon the land of the adjacent owner, but disclaims title, and tenders reasonable amends before the suit was brought: HELD, that such trespasser is protected under the Act of Assembly, Rev. Stat. 31st chapter, 83d section.

Action of Trespass, quare clausum fregit, tried before his Honor, Judge MANLY, at the Spring Term, 1854, of Forsythe Superior Court.

Plea, general issue, and a special plea under the statutes, disclaiming title, alleging the trespass to be involuntary, and tender of sufficient amends.

The case presented by the evidence was, that the defendant, a short time before the trespass complained of, had become the tenant of a piece of land adjoining the plaintiff's, and had, in ignorance of the boundary between them, not far from his, defendant's house, cut a few sticks of pine wood, which were not taken away.

At another time, the defendant admitted to a witness that he had cut a board tree on another contiguous parcel of the plaintiff's land, but stated, at the same time, that he did not know he had got over the line of the land he occupied, and reckoned the plaintiff would not care or make a fuss.

Soon after the sticks were cut for fire-wood as above stated, the plaintiff went into the field of the defendant, where he was at work, and enquired who did it. The defendant answered that he had cut them, stated the circumstances under which it was done, and offered to make any amends required; to which plaintiff answered, “he had the advantage, and he intended to use it.” The defendant tendered two dollars to the plaintiff, before the bringing of the action, and afterwards, at the appearance term to which the writ was returnable, paid the same into Court.

The counsel for the defendant contended that the trespasses proved were involuntary, and were against the will of the defendant, and therefore within the meaning and purview of the Statute.

To which was replied by the other side, that as to the trespass in cutting the board tree, there was no evidence that it was involuntary, and asked the Court so to charge the jury.

But his Honor declined the instructions asked, thinking there was evidence for the jury to consider, as to both the trespasses complained of, and informed them that if these trespasses were made in ignorance of the boundary by the defendant through an honest mistake of his rights, and upon being properly informed, sufficient amends were tendered and paid into Court by him, the second plea might be found in favor of the defendant.

There was a verdict for the defendant upon the last...