
    The Greenville and Columbia Railroad Company vs. John A. Partlow.
    
      Corporations — Trespass Quare Clausum Fregit — Circumstantial Fvidence — Fxemplary Damages.
    
    A corporation may maintain the action of trespass quare clausum fregit.
    
    Where the evidence of defendant’s participation in the commission of a trespass was altogether circumstantial, and the verdict was for the plaintiff, held, that the Judge did not err in charging the jury that, although one or more of the circumstances detached would not authorize the inference that defendant was the trespasser, yet that his direction or consent to the trespass might he deduced from all the circumstances as enumerated in the charge, one of which was that defendant, having ■ the opportunity to take the stand and exculpate himself, had declined to do so.
    Exemplary damages may he given in an action of trespass quare clausum fregit.
    
    BEFORE GLOVER, J., AT ABBEVILLE, SPRING TERM, 1867.
    The report of Ms Honor, tbe presiding Judge, is as follows :
    “The action was trespass quare clausum fregit to recover damages for injuries done to plaintiff’s road in Abbeville District. The consideration of the grounds of appeal makes it necessary to furnish the evidence with this report, which is as follows:
    
      Leroy J. Wilson was in plaintiff’s service in spring of 1864. On Monday, April 4th, eight or ten o’clock A. M., he passed with many passengers in the train, and saw two posts one on each side of the road, above New Market, as if for a cattle-guard. They seemed to have been set up for fences which were fixing up on each side of the posts. Defendant’s .fields were on each side, and he saw negroes there. The posts were one foot and a half from the rails, and were four or five inches too near to admit the free passage of the engine, and were knocked down by the bumper, (cow-catcber.) Defendant’s residence was about one-half mile distant.
    
      “M. J. Siegler was in plaintiff’s service, and going up, April 4th, 1864, about two or three o’clock P. M., came with his train, with a good many passengers, nearly a mile from New Market and one-half mile from defendant’s house, which was in sight, and found a gate hung there (in a curve) and knocked it off. He was very near before he saw the gate, which was across the track and too near to stop. No injury was done except that his flag-staff was knocked off. There was a latch to the gate, which was shut when he strucJc it. A freight train was behind Mm. He felt the jar. He thinks the field was ploughed and planted. Sometimes the iron rails are up and may be removed by the cars.
    
      “D. B. G-lymp was a conductor in plaintiff’s service the first Monday in April, 1864. Near this gate two bars of iron were thrown off the track, eight or ten feet off and above. The engine was thrown down the bank, which was eight or ten feet high. There were eight or nine persons in the cars. The cow-catcher tore up the cross-ties. The rails were ten or twelve feet and were removed, he is certain, by some persons. It takes two or more persons to remove a rail. It was necessary to build a track to get engine on the road, and it was a week before it was removed. No one came there from the plantation. The train was coming up. The engine tender and one box-car were thrown off and were injured. The iron bars were six or eight feet off and parallel with the road, and it would take a crowbar to remove them. He can’t see how a car could throw off the iron as this was.
    
      “Andrew O'Brien was at this time in plaintiff’s service as carpenter, and arrived there one-half hour after engine ran off. Engine and tender were off and the road torn up. The bank was eight feet high. The rails were placed above, and some-spikes confining them were out. The gate was pretty much where the rails were removed. Pences were there, and a week or two after were removed. Before this the fence had been fifty or one hundred yards further towards New Market. The fields were defendant’s. The cross-ties were generally sound there. With two crowbars and another hand he could remove two rails in fifteen minutes. Two rotten, ties under one rail would not throw off car. It was eight or ten days before they got the engine back, the top of which was smashed. The road there was good. He never saw rails thrown this way by an engine.
    
      “ Defendant said he wished another cattle-guard dug in that curve, about a month before, which was about fifty yards from the old one. T. C. Wilson was the agent at New Market. Defendant owned and cultivated the land at the place of the accident. The track was repaired next day.
    
      “ Levi (colored) had belonged to defendant, who owned and cultivated the land where the gate was. He saw the rails taken up. Defendant ordered five of them to take up the rails. Three of those who took up rails are in Plorida and one in Georgetown. They had a crowbar, a cold chisel and a sledge. Defendant said, Tear up railroad and throw the rails to hell. Defendant hid himself and sent them to do it. Witness was mighty close to track when accident happened. When passenger train went down they tore it up. No overseer was there. One of the hands was a blacksmith, one a sort of blacksmith, and one a stiller.
    
      “ Cross-examined. It was Add who came for them to go. Witness had no chat with defendant that morning, and was not nearer than fifty yards or more to him that morning. Prom what Henry said he knew that orders were given. He never heard defendant give orders. It was Henry who gave them.
    
      “Re-examined. The store is one hundred and ten yards from the house, and the blacksmith shop the same distance. Defendant never scolded them for tearing up the track. When they did it, they ran off.
    “ Colonel Perrin. — He was then President of the Company. Believes he was there on Wednesday. The bank there was eight or ten feet high. The engine was very much damaged, and tender and car injured. It was necessary to make side track to remove the engine, &c.; was a bad place to remove it, and required twenty-five or thirty hands to do it, and it was eight or ten days before it was gotten on the track, and a month or two before the engine was used. The actual cost to Company was $2,500 or $3,000, without reference to Confederate money. The original cost of tbe engine was eight or ten thousand dollars. There was so much travel then on the road, especially by soldiers, and their supply being small, he could not thoroughly repair the engine, as he had great use for it. The defendant never communicated with him or reported about the matter.
    “ I stated to the jury that the trespass complained of, consisting of the posts and gate placed on the road, and removing the iron rails, was of a character not generally susceptible of positive proof — that only circumstantial evidence could, in such cases, be reasonably expected, and that if the surrounding facts, constituting the circumstances, satisfied them that defendant had committed the trespass alleged, they should find for the plaintiff. I then called their attention to the several circumstances relied upon: that the defendant was the proprietor of the land on both sides of the road where the trespass ■was committed; that his house was near and in view; that, a few weeks before, he wished a cattle-guard, which was only one hundred yards distant, to be removed to some point within this curve, which had not been done; that his negroes, if they believed Levi, committed the trespass in the day and within sight of his house, and using necessarily much force to detach and remove the iron, and consuming the time appropriated to the work of the plantation; that he was not seen after the accident, nor during the time employed in repairing the road and removing the engine, and in no way communicating with the officers and employees of the Company or manifesting any concern respecting tbe occurrence; and that the posts, to which the gate was attached, were the termini of his fences, then being built on either side of the road by his negroes, &c.
    “ The jury was admonished that one or more of these circumstances detached would not authorize the inference that the defendant was the trespasser; but that if, connecting them together, they pointed to the defendant, and to no one else, the evidence, although circumstantial, was sufficient proof, if their understandings were convinced. They were certainly not controlled in the consideration of the facts. Until his cross-examination, it was not perceived that Levi, in declaring that the defendant gave the order to commit this trespass, spoke from the information communicated to him by other negroes, and this evidence was not admitted on his direct examination against any objection urged against it, for none such was then perceived or urged; and I told the jury that so much of his evidence as charged the defendant with the giving of any such order was inadmissible, but that so much of it as implicated him (Levi) and the other negroes in the committing of the trespass was admissible. After stating the actual damages which Colonel Perrin proved, I instructed the jury that, if they found for the plaintiff they might increase the actual damages to such an amount as the circumstances of the case might warrant, depending upon the wilful and malicious purpose with which the act was committed; that in such actions the law allowed punitory and exemplary damages when the trespass was the result of the indulgence of revengeful and malignant feelings. The jury found a verdict for plaintiff for $8,500.”
    The defendant appealed, and now moved this Court in arrest of judgment and for a new trial, upon the grounds:
    In arrest of judgment:
    That an action of trespass quare clausum fregil cannot be maintained by the plaintiff against the defendant.
    
      Por a new trial:
    First. That his Honor, the presiding Judge, was in error in charging the jury that deductions, as to the direction or consent of the defendant to the trespass complained of, might be inferred from these and similar things.
    1. That the place where the injury occurred was the land of defendant.
    2. That defendant’s house was about one-half mile from the spot, and that he manifested no interest or concern at the injury.
    3. That defendant was his own overseer, and would not have permitted his slaves to do such an act without his order.
    4. That he was building a fence near the spot up to the railroad embankment.
    5. That defendant had applied to a railroad employee to have the cattle gaps repaired, which was not done.
    6. That he gave no information to the officers of the road upon his negroes.
    7. That, having an opportunity of taking the stand as a witness to give evidence for himself, he declined to do.it.
    Second. That his Honor instructed the jury that if they found malicious or revengeful motives, they might find exemplary damages to any amount — thus instructing the jury to draw an inference when there was no proof.
    Third. That his Honor admitted as- evidence, after objection made, the opinion or conjecture of an ignorant freedman as to whether John A. Partlow knew a particular fact.
    Fourth. That his Honor ruled that the opinion of a freedman, in regard to a matter which could exist only in opinion, was competent evidence to go to the jury.
    
      Eifth. That the damages found by the jury were excessive and beyond justice.
    
      Thomson, McGowan, for appellant.
    
      Burt, contra.
   The opinion of the Court was delivered by

Dunkin, C. J.

By virtue of their charter, 11 Stat. 324, the plaintiffs are vested with the rights and subject to the obligations incident to corporations, among which are those of instituting suits; see case of Sutton's Hospital, 5 Co. Rep. 36. The motion in arrest of judgment presents the inquiry whether a corporation can maintain the action of trespass quare clausum fregit.

It was for some time doubted whether such action could be maintained against a corporation; and for the reason that the action supposes a personal act on the part of the defendant, of which the corporation is incapable in its collective capacity. But in this State no such doubt can exist since the case of Main vs. N. E. Railroad Co., 12 Rich. 82, where it was authoritatively adjudicated, that such action might be maintained against a railroad company or other similar corporation. No reason of this kind exists against the right of a corporation to maintain such action; accordingly no case has been brought to our notice affirming the incapacity of the corporation to maintain such action, and, in many cases, the contrary is assumed without challenge, as in the municipal corporation of Shrewsbury vs. Smith, 14 Pick. R. 297, which was an action of trespass quare clausum fregit for ploughing a large part of the land called the Shrewsbury “ Common.” Chief Justice Shaw, sustaining the judgment against the defendant, says: “It is a settled rule of law, that any actual possession of real estate is sufficient to enable the party in possession to maintain trespass quare clausum fregit against a stranger; and every one must be deemed a stranger, who can show no title and no older possession.”

The opinion of tbe Legislature as to tbe right of this corporation to institute such proceeding may be incidentally inferred from the fifteenth section of the charter.

After providing for the punishment criminally, by fine and imprisonment, of unlawful intruders upon the road, besides - rendering them liable to a civil action for damages, it is declared “that the provisions of the Act in this respect shall be extended as well to the owners of the lands through which the road may be constructed as to other persons, and no owner, or other person claiming under him, or her, shall avoid the said provisions by the plea of liberum tenementum, or by any other plea whatever.” This, it is familiarly known, i§ the appropriate plea, on the part of one claiming title, to the action quare clausum fregit, and it may well be regarded as a recognition of the right of the corporation to maintain such suit.

The first ground in the motion for a new trial imputes error in the charge of the presiding Judge, that inferences of “the direction or consent of the defendant to the trespass” might be deduced from certain circumstances therein enumerated.

It is not necessary to recapitulate those circumstances. It may be that no one of the facts would, of itself, warrant the inference, and yet, when taken together, they may produce belief, which is the object of all evidence. In 1 Greenl. Ev. § 51, a, it is said: “It is not necessary that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although alone, it might not justify a verdict in accordance with it.” All the circumstances mentioned in this ground may be regarded as links in the chain of proof from which the jury might deduce the inference of the defendant’s privity and direction in the acts of trespass. This is usually the case where an issue depends on circumstantial evidence. Among the circumstances was the fact that, having the opportunity to take the stand and exculpate himself, the defendant declined to do so. The wisdom or policy of the recent law of evidence, on which the defendant’s counsel have animadverted, is not a matter for the consideration of the Court. Experience will probably afford the safest test. But if no such law had existed, the defendant, if innocent, might well regret that he was not permitted to remove, by a word of explanation or denial, the doubtful inference deduced from circumstances. The law affords him such permission, and he declines to avail himself of the opportunity. We cannot say that the Court erred in charging the jury, that this, among other circumstances, might be taken into their consideration.

Again: it is objected that " his Honor erred in charging the jury, that, if they believed the defendant to be actuated by malicious or revengeful motives, they might find exemplary damages to any amount, thus instructing the jury to draw an inference where there was no proof.” If by this it be meant to affirm that, in an action of trespass, which the jury believed malicious and revengeful, the amount of the verdict must be restricted to the damages proved, the proposition wants the support of authority. Nor is it deemed necessary to go beyond our own case of Rowe vs. Moses, 9 Rich. 425. Mr. Justice O’Neall, speaking for the Court, says, that the right of the jury, in actions for malicious torts, to find vindictive damages, had never before been questioned within his knowledge. He quotes what was said in Chancellor vs. Vaughan, 2 Bay, 416: "It was the province of the jury to weigh well and consider all the circumstances of the case, and to assess such damages as they thought would be commensurate with the injury, and such as would effectually check such an evil.” Golding vs. Williams, Dudley, 92, was an action of trespass guare clausum fregit, in which the jury found a verdict of five hundred dollars against the defendant for a high-handed trespass in passing through the plaintiff’s plantation with his wagon and team, although the only actual damage was some unimportant injury in breaking his gate and lock ; and the Court of Appeals refused to disturb the verdict.

As to the fifth and last ground, the Court have only to remark that, if the jury deduced a correct conclusion from the i facts, which were peculiarly for their consideration, the defendant has little cause to complain of the amount of damages awarded.

The motion in arrest of judgment as well as that for a new trial is dismissed.

Warduaw and Inglis, J. J., concurred.

Motions dismissed.  