Pugh. The Raleigh and Gaston Rail Road Company.

adopt all necessary and convenient means to transport its passengers and freight across the river, and this authority had reference to a convenient place near the site of the bridge, as well as the kind of boats to be used. So the company was not put in the dilemma either to leave its passengers and freight on the river bank or else to submit to such terms as the plaintiff, who was the lessee of Wilkins' Ferry, might see proper to impose. What injury was done to the plaintiff by the fact that the Company had to resort to boats until the bridge could be rebuilt? None whatever, for the use of its boats was confined exclusively to the transportation of passengers and freight; so the plaintiff stands in the attitude of one seeking to enforce penalties because he was not permitted to take benefit from the misfortune of others.

We deem it unnecessary to notice the many points that were discussed in the learned arguments with which the court was favored.

PER CURIAM.

Judgment affirmed.

Whitfield 2. Bodenhammer.

NICHOLAS WHITFIELD . JOSEPH BODENHAMMER.

Two neighbors having agreed to build a rail fence upon the boundaries between them, it was also agreed that the eastern half of it should be built by the plaintiff and the western by the defendant. In building his part the defendant, inadvertently or to get a better location, placed it altogether upon the plaintiff 's land: Held that he was not liable to the plaintiff in an action of Trespass quare dousum fregit, for subsequently removing his part of such fence.

Held also, that neither the agreement between the parties about the building of the fence, nor a subsequent notice given by the defendant to the plaintiff of his intention to remove it, were (under the circumstances) evidence of license by the plaintiff of a removal.

TRESPASS Q. C. F., tried before Warren, J., at Spring Term, 1867, of the Superior Court of FORSYTH.

The evidence showed that the parties owned adjoining lands and agreed to build a rail fence upon a boundary line between them running East and West, the eastern half to be built and maintained by the plaintiff, and the western half by the defendant; also that the defendant, inadvertently or in order to secure a better location for his part, placed it entirely upon the plaintiff's land. Subsequently the defendant gave the plaintiff notice in writing that he intended on a certain day to have his land surveyed and to set his fence upon his own land, and that he might attend and see it done. On that day the defendant attended but no surveyor came, whereupon another day was appointed. Before that day the defendant removed his part of the fence. On the second appointed day the parties met and surveyed the whole East and West line on which the fence had been placed.

In the court below his Honor instructed the jury that there was no evidence of license by the plaintiff, and that if the plaintiff had proved that the defendant had trespassed upon his land, he was entitled to their verdict.

Whitfield v. Bodenhammer.

Verdict for the plaintiff; rule for a new trial; rule discharged; judgment and appeal by the defendant.

T. J. Wilson, for the appellant.

1. There was evidence of license. Harrison v. Parker, 6 E., 164; 2 Saund. Rep., 113, note c; 3 Ire., 374.

2. Defendant had possession of fence, or was tenant in common, and in either case not liable in trespass. McPherson v. Sequine, 3 Dev., 153.

No counsel in this court, contra.

PEARSON, C. J. An unfortunate misunderstanding between two neighbors has originated a "new point" for the decision of the courts, and resort must be had to the analogies of the law.

The attention of his Honor seems to have been confined to the question, whether there was any evidence that the plaintiff had given license to the defendant to remove the fence. We concur with him in the opinion that there was no evidence to support this allegation; for it must be taken as a matter of course that the plaintiff objected to the removal of the fence.

But in deciding a case the court is bound to look at the whole record, and the whole case made by the record and the evidence; and it is manifest that the plea "not guilty" of the trespass complained of presents the broad question: "Upon the facts stated, can the plaintiff maintain an action of trespass vi et armis, quare clausum fregit?"

We are of opinion that the evidence set out by his Honor did not make a case upon which the plaintiff could maintain the action, and that his remedy, if he had any cause of complaint after the defendant had given notice for the purpose of putting an end to the agreement in regard to the dividing fence, was by action on the case in assumpsit.

Whitfield v. Bodenhammer.

By the agreement the fence, a worm fence, was to be built on the dviding East and West line. The rails were to be laid so that one-half of the ground-rail should be on plaintiff's land, and the other half on that of the defendant. Of course in such arrangements exactness is not expected or required; and it so happened that for some poles near the western corner, the defendant, it being his part to make that portion of the fence, either because he did not know precisely where the line was, or in order to get a better location for the fence, placed the ground rail "altogether over on the plaintiff's land." To this the plaintiff made no objection, and the legal effect was, that the defendant acquired possession up to the turn of the fence; or, at all events, acquired a joint possession with the plaintiff, just as he had in regard to that part of the land where the fence was exactly on the line. Whether he had an exclusive or a joint possession, it is not necessary to determine; for, supposing it to be a joint possession, trespass vi et armis does not lie.

If one enters into the house or upon the land of another by his permission, and afterwards does an act inconsistent with the agreement or license under which he entered, he cannot be treated as "a trespasser ab initio." That fiction is confined to cases when the entry is allowed by law, as upon an entry into a tavern or store, so that analogy is against the plaintiff. Six Carpenters' case, Coke's Reps. If a tenant at will or from year to year, after notice given, removes a fence or building which he had put on the land, trespass vi et armis cannot be maintained. The remedy is an action on the case in the nature of a writ of waste; so that analogy also is against the plaintiff.

By laying the fence with his own rails, the defendant acquired either an exclusive or a joint possession of the land on which his rails were put, and of the land enclosed by the

Harralson v. Pleasants.

Taking it either way, the plaintiff had not such a possession as enables him to maintain trespass vi et armis, unless the plaintiff can treat the defendant as a trespasser ab initio, which, as we have said, he cannot do.

There is error.

PER CURIAM.

Judgment reversed; Venire de novo.

WILLIAM C. HARRALSON. WILLIAM PLEASANTS.

An award of arbitrators, to whom a case of trespass q. c. f. was referred, that there was "no trespass," enables the court to dispose of the case, and should not be set aside for uncertainty.

When an award fails to dispose of the costs, each party must pay his own costs.

(Gibbs v. Beery, 13 Ire., 388, cited, distinguished and approved; Debrule v. Scott, 8 Jon., 33, cited and approved.)

TRESPASS quare clausum fregit, tried before Mitchell, J., upon an award of arbitrators, at a special term, 1867, of the Superior Court of CASWELL.

The defendant appealed from a judgment of the court setting aside the award. The facts are stated in the opinion.

Graham, with whom were Phillips & Battle, for the appellant.

The award is certain to a common intent, and is equivalent to a verdict of not guilty, the judgment upon which carries costs. Gibbs v. Beery, 13 Ire., 388; Carter v. Jones, 4 Dev. & Bat. 182; Moore v. Gherkin, Bus., 73; Miller v. Milcher, 13 Ire., 49. Judgment for costs after such decision was a matter of course. Arrington v. Battle, 2 Mur., 246, is to be distinguished from this under the rule, "expressio unius," &c.