
    Edward Broughton v. John Singleton.
    Hunting on uninclosed lands is not such a trespass as will support an action of trespass quare clausum fregit-, nor will the owner’s forbidding it vary the case.
    Tried before Mr, Justice Colcook, at Sumter, Spring Term, 1820..
    This was an action of trespass quare clausum fregit, in which the jury found for the plaintiff $300 damages.
    The circumstances were substantially these: The defendant, and several others, were out on a hunting *party, and rode into an old uncultivated pggg field, around which there had been a fence, but which was then down in L many places. The plaintiff came up, while they were in the field, and ordered them off. The defendant replied, that he did not know the field belonged to him, and that they would go out, and did so accordingly. While they were yet in the field, and before they could get out, the plaintiff seized the gun of one of the party, (Mr. Moore,) and, in the end, took it from him, but the witness did not know what led to it, as'they were scuffling for it when he first saw them, and while they were engaged, the defendant cried out to some one to “ shoot the plaintiff.” The plaintiff then fled, as the witness said, in a great fright, and one of them pursued him a short distance. The plaintiff had before forbade the defendant to hunt on his land, but he had very recently purchased this place, and it was proved as clearly as negative evidence could make it, that all of the party were ignorant that he then owned it. Several others were joined with the defendant in this action, and the Circuit Court sustained a motion for a nonsuit, as to them, when the plaintiff had closed his evidence, but refused it as to the defendant, on the ground that he had been forbidden by the plaintiff to hunt on the land, and it was left to the jury to decide, whether he knew the land was his or not.
    The defendant now renewed his motion for a nonsuit, on the ground that the hunting was on the uninclosed grounds of the plaintiff, and, by law, he was authorized to hunt there, and the plaintiff’s forbidding him did not take that right away.
    If this motion failed, he also moved for a new trial:
    1. Because there was full proof, that the defendant was ignorant that the lauds belonged to plaintiff. The trespass, if any, was therefore involuntary, and no injury was actually sustained.
    2. Because the verdict is excessive, and the result of the prejudices of the jury-
   *340] *The opinion of the Court was delivered by

Johnson, J.

Our ideas of those injuries, for which the action of trespass will lie, are principally derived from English authorities, and I am disposed to think they are followed without a proper regard to the vast difference between the situation of the two countries, so that in pursuing the letter, we lose sight of the principle. There, almost every foot of soil is appropriated to some specific purpose ; here, much the greater part consists in uninclosed and uncultivated forest, and a part in. exhausted old fields, which have been abandoned, as unfit for further cultivation, in which the cattle of the citizens feed at will. There it hi as practicable as necessary to protect the occupant against those petty trespasses, here it is wholly impracticable, and, I think, unnecessary. The attempt to give this protection to uninclosed land, would overwhelm us in a sea of petty litigation, destructive of the interests and peace of the community. Upon this principle, it was determined in the ease of M’Connico v. Singleton, (2 M. Con. Rep. 244,) that hunting on uninclosed lands, was not such a trespass as would sustain an action; and upon the same principle, I was inclined to think that the motion for a nonsuit ought to have been sustained, but my brethren have thought it better that the case should be sent back for a new trial.

On the merits of the case, I am equally satisfied that injustice has been done the defendant. The field in which the trespass was committed, if not wholly abandoned, was so exposed, and the dilapidated state of the fencing was such as to justify the belief that it was. And if he had a right to enter it, the defendant’s fordidding him could not take it away; but all the injury complained of was the mere riding on the soil, and from the evidence, it appears he was ignorant that it belonged to the plaintiff. If it be an injury, the damages given must strike every one at once as enormous and excessive. It is said, however, that the personal insult offered to the plaintiff is a ^justification for this verdict. L'á If one man wantonly entered on the lands of another for the purpose of insulting him, I would make it the means of punishing him, although he had not left his track on the soil. But in this case any insult which the plaintiff received was the consequence of his own indiscretion, and he ought not now to profit by it. The motion for a new trial is, therefore, granted.

Nott and Hxjgbk, JJ., concurred.

Colcock and Gantt, JJ., dissented.

11 Rich. 262 ; 6 Rich. 325 ; 1 Strob. 175 ; Harp. 201.  