Opinion
December Term, 1841.
1. If an injury to another be immediate, and committed with force, either actual or implied, it is the subject of an action of trespass vi et armis, whether the injury be willful or not.
2. Where a person was cutting down trees growing on his own land, and one of them accidentally fell on his neighbor's land: Held, that an action of trespass quare clausum fregit would lie, whether there was any grass or other vegetable matter growing on the ground or not.
TRESPASS vi et armis quare clausum fregit, tried at Fall Term, 1841, of STOKES, before Nash, J.
(43) J. T. Morehead for plaintiff.
No counsel for defendant.
The plaintiff and the defendant were owners of contiguous tracts of land. In clearing near the dividing line, a tree cut on the defendant's land fell with part of the top on the land of the plaintiff. There was no evidence to show that the tree was felled by design or carelessness on the plaintiff's land; nor was there any evidence to show that when the tree fell there was any grass or vegetable growth of any kind, or that any actual injury was sustained by the land. The counsel for the plaintiff requested the court to charge the jury that when a man, in clearing his land, fells a tree so that any part of it falls on his neighbor's land, it is a trespass for which an action of trespass quare clausum fregit can be sustained. The court declined giving the instructions as prayed for, but charged the jury that every voluntary entry on the land of another, without his consent, and not sanctioned by the law was a trespass for which an action could be brought; that in this case the plaintiff could not sustain his action unless they were satisfied from the evidence that the tree was designedly or carelessly felled by the defendant so as to fall on the plaintiff's land, or that, by falling on the plaintiff's land, it had fallen on his grass or vegetable growth of some kind. There was a verdict and judgment for the defendant, and the plaintiff appealed.
To sustain trespass, the injury must in general be immediate, and committed with force, either actual or implied. If the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured thereby, it is the subject of an action of trespass vi et armis, by all the cases, both ancient and modern, and it is immaterial whether the injury be willful or not. Leame v. Bray, 3 East. 599; 2 Leigh N. P., 1402. We think that the charge of the judge was incorrect when he said "that the plaintiff could not recover unless the tree was designedly or carelessly felled by the defendant, so as to fall on the plaintiff's land, or that, by falling on the plaintiff's land, it had fallen on his grass or vegetable growth of some kind." The ground of the action, q. c. f., is the injury to the possession (3 Black, Com., 210; 1 Term, 480), and that, whether the injury extends to the plaintiff's land in the mineral or vegetable kingdom. Is not the felling of trees on a person's land and encumbering it with rubbish an injury to the possession? We think it is. Where a master ordered his servant to lay down a quantity of rubbish near his neighbor's wall, but so that it might not touch the same, and the servant used ordinary care in executing the orders of his master, but some of the rubbish naturally ran from the pile against the wall, it was held that the master was liable in trespass. Gregory v. Piper, 17 Eng. C. L. 454.
We are of the opinion that there must be a
PER CURIAM. New trial.
(44)