
    A. Johnson, v. John Hannahan, and John James Hannahan.
    Defendant cannot be made liable in trespass for entering upon his own land, in the wrongful possession of plaintiff, and exerting a right of ownership; nor can any unlawful acts, committed in the exertion of this right, be so connected with it, as to make him liable in damages to plaintiff as a trespasser ab initio. Such acts have their distinct, appropriate legal remedies.
    Ti’ied before Mr. Justice O’Neall, at Charleston, Spring Term, 1845.
    This was an action of trespass for breaking and entering the close of the plaintiff. The defendant, John Hannahan, is an owner of part of the plantations of the late Mr. Murray, on Edisto Island: his land adjoins that of Captain John Jenkins, and is separated from it by a straight line, which was supposed to be represented by an old line ditch hereafter to be spoken of. During the life time of Mr. Murray, he opened for his own use a road on his own land, the line ditch was on its margin next to Mr. Jenkins’ land. This private road runs into the public road leading to the Church. The plaintiff, who is the Clerk and Sexton of the Church, and keeper of the only public house on Edisto Island, and who was abundantly proved to be a man of unexceptionable character, leased from Mr. Jenkins a lot of land fronting on this private road; so did Mr. Leverett, the Rector: they both built, and the plaintiff for four years had occupied his house and lot. His only means of reaching the Church without opening a new road, was along Mr. Hannahan’s private road to the public road. In front of his house, he put up, and enjoyed a vegetable and flower garden, which extended beyond the old line ditch, which had been filled up, and occupied a part of the bank along the road. Mr. Jenkins proved, that knowing the old ditch did not preserve the exact mathematical line between him and Mr. Hannahan, he authorized the plaintiff to put his garden as he did. The outside fence was, he said, partly on Hannahan’s land, eighteen inches at one end: at the other it was on his: this statement supposed the old line ditch not to be the true line, and if that was so, then the garden fence would have been cut something like this diagram:
    
      
      
    
    but the proof was clear, that the old line ditch had been an acknowledged boundary for more than twenty years, pursuing nearly the exact mathematical line; and the presiding Judge therefore thought it was to be taken as the line, and as that was assumed by him, and the jury instructed accordingly, and they must be considered as finding in conformity to such instruction, which was in favor of the defendants, it cannot be necessary to state the proof further in reference to it. The plaintiff’s occupation beyond the old ditch was known to Mr. Hannahan, the elder; he made, so far as the Court was informed by the proof, no complaint about it, until in January, 1844, when the defendant, the elder Hannahan, directed Johnson, the plaintiff, to remove his fence, so as to leave the ditch outside of his garden. This he declined doing, saying that Capt. Jenkins had authorized him to place it where it was. On the morning of the 7th of February, 1844, the defendant, the elder Hannahan, accompanied by his gardener, Welch, two ditchers, Carney and another, all of them Irishmen, proceeded to re-open the line ditch. Welch laid it out, and Hannahan directed him to take a foot off of his land, rather than trench on his neighbor. The work was laid out through the garden; and the laborers, Welch, Carney and another, began to open the ditch through the plaintiff’s garden: the plaintiff and defendant, the elder Hannahan, saw and saluted each other; nothing was said about the work; soon after the work commenced, Hannahan rode olf. The laborers broke the garden fence where the ditch crossed it, and took the gate down. The plaintiff, finding his garden was exposed by the opening of the ditch, after dinner, with an Englishman of the name of Bates, the witness, Hills, and two negroes, were about removing the outside line of the garden fence, which the ditch cut off, and placing it on Johnson’s side of the ditch, so as to inclose the garden. To do this, they were about taking it up entire and setting it over the ditch, which had been opened three feet at top; when they were thus employed, the two defendants, father and son, rode up together, and John Hannah.an asked what they were doing on his land, and as the witness Hills said, the defendant, the elder Hannahan, jumped off his horse, took up one of the rails of the garden, and knocked the Englishman, Bates, down over the ditch on Johnson’s land; as he rose, the other defendant, John James Hannahan, kicked him; then he raised an axe, which the Irishmen, Welch, Cai'ney and the other, took from him. In the affray, Mrs. Johnson and her youngest daughter came out. The Englishman cursed the Irishman; Hannahan the elder, threatened him, told the Irishmen to tie him up and give him fifty lashes; he, the witness Hills, advised the Englishman to go into the house, which he did ; he also advised Mrs. Johnson and her daughter to go back into the house, which they did, Mrs. Johnson standing in the door of the piazza. Hannahan, the elder, told the plaintiff he was an old lame hypocrite, (the plaintiff is a cripple.) As the Irishmen approached the house in pursuit of the Englishman, Mrs. Johnson standing in the door with her arm across it, asked if her house was not sacred; the elder Hannahan said he had as much right to be there as she had; one of the Irishmen pulled her arm out of the way; they went into the house, and one to Mrs. Johnson’s bed-room, searching for the Englishman who had been advised to fly, and who escaped through a back window. The defendant, John Hannahan, was at this time in the piazza. When Hannahan the elder saw that the Irishmen were in the house, he called to them to come out, told the witness to tell them to come out. Hills said that the elder Hannahan a part of the time was in the garden, and much excited. The plaintiff’s family appeared to be much excited, and went to a neighbors, Mr. Blacks, where they stayed all night. Mrs. Leverett, the wife of the Rector, whose house is very near, so near that what passes at Johnson’s can be heard, proved that on the day of this affair, as she lifted the sash of a window towards Johnson’s, she heard intemperate and boisterous language. She said she saw several men digging a ditch, and the elder Hannahan. He was using loud words towards Mr. Johnson; he was at one time in the road, at another in the garden; his language was rude and insulting. She saw something like a scuffle, heard loud language and oaths; saw a little man rush into the house pursued by men dressed as laborers; she saw him make his escape by a back window. More than one entered the piazza; after they entered it, she saw a man, she took from his dress and appearance, to be one of the defendants in the piazza. The men entered the piazza, appeared to stop at the door; she heard a scream. It was after the dinner hour of country people. In the evening she saw the garden, the fence was down, the flowers and vegetables trampled down; the plants flung into the road; It was the day previous a very neat place. The accounts given by these witnesses were utterly denied by Welch and Carney; they testified that neither of the defendants was on the land of the plaintiff, that they both remained on the land of the elder Hannahan during the whole affair. Neither of them, they said, were in the piazza or on Johnson’s side of the ditch. They said that in consequence of the Englishman taking up an axe and striking at the elder Han-nahan, he knocked him down with the rail; that the younger Hannahan did not touch him; that they interfered and took the axe from him to keep him from striking Hannahan with it. The Englishman called them “Irish sons of bitches” when he was standing in the piazza. Welch, Carney, and another Irishman, went in after him: the elder Hannahan called to them to come out, they did so; he did not say any thing to induce them to go in; the act was their own, and the result of passion, from the opprobrious words used towards them by the Englishman. The elder Hannahan compelled them to apologize to the plaintiff for their intrusion, which they did; he said he would turn off the Englishman for behaving towards the elder Hannahan as he had done, The plaintiff and the elder Hannahan talked together, and the plaintiff after their apology, accepted and said he was satisfied. They said that Mrs. Johnson was in her room when they entered the piazza after the Englishman. They said Hills was on the piazza when they were: the elder Han-nahan, they said, never called Johnson a damned lame old hypocrite. They said the garden was uninjured, except where the ditch ran, and then every plant dug up was set out again; no plants, they said, were flung into the road. They proved that tbe elder Hannahan told Johnson after the affray was over, that he might have his pailings, and might plant the land too if he wanted it. The whole object, Hannahan said, was to make the boundary.
    It appeared that Hills, the witness, was armed next day, and said if Hannahan or any of his workmen stopped his cart (lie was a bricklayer, and was hauling bricks along the private road) he would put a ball through him. The defendant is a man of wealth.
    The jury were told that the action was for breaking and entering the plaintiff’s close, and committing many enormities incident thereto. That in such a trespass, all who were concerned or took part by word or deed, were principals. Generally, (they were told) possession is enough to maintain this action. But yet if the rightful owner enters peaceably and without actual power, on the ¿ocus in quo, and ousts a mere wrong doer, that his justification arising from his title, would be complete and ample. But if in making such entry, and after an entry, but in connection with it, the defendants did any act unnecessary to the assertion of the title of the elder Hannahan, such as the exhibition of power, in arms, or deadly weapons, or the commission of a trespass, in entering upon the acknowledged soil of the plaintiff, beating his wife, children or servants, it would malee them trespassers ab initio.
    
    The jury were told that the just question was, had the defendant, the elder Hannahan, shown title to that part of the close where he ran his ditch ? For if he had not, the possession was in the plaintiff, and his action inadmissible. But his Honor told them the proof clearly showed, that the ditch opened by the defendant through the garden, was the line ditch of more than twenty years standing, and veas the true boundary between him and Jenkins, and that having the right to re-open it as a boundary, if lie did no more, the plaintiff could not recover. But if he did more than was necessary to that purpose, and in doing it, committed in connection with it other trespasses, it might make him and all concerned, trespassers ab initio. They were told to inquire, first, did either, and which, or both of the defendants enter upon the acknowledged soil of the plaintiff, or on his side of the ditch in the garden, or into the piazza, and with what object? If such entry or entries was or were made, against the will of the plaintiff, and to injure him, then there was no doubt, that such would be a trespass or trespasses. Secondly, they were directed to inquire, whether the entry of the Irishmen into the house, and the assault upon Mrs. Johnson, was to be attributed to one or both of the defendants? They were carefully pointed to the facts connected with this branch of the case. They were next told, if they thought the elder Hannahan had committed a trespass, to inquire whether John James Hannahan was also guilty. They were told that his only participation seemed to be in kicking the Englishman, (if he did so); this, if it was done, on the plaintiff’s side of the ditch, might make him guilty of a technical trespass; and then if they thought he came to aid his father in the quarrel with the plaintiff, they might hold him equally guilty: but if not, they ought to find for him, or at most, they should find against him moderate, and perhaps only nominal damages.
    The jury were told that the question for damages was entirely for them. If they thought the acts done by the defendants or one of them, were done in the pursuit of a right, and exceeded the bounds of justification from passion and not intention, that then the verdict ought not to exceed actual compensation for the injury done: but if the defendants or one of them, committed the acts which were in their judgment attributable to them or one of them, from a settled purpose to oppress the plaintiff that then their verdict against one or both of the defendants, should be for such a sum as would amply compensate the plaintiff for the injury, and teach the defendants, one or both of them, a good lesson of moderation for the future.
    The jury (certainly one of as much intelligence and respectability, says his Honor, as ever I saw empannelled,) found a verdict for the plaintiff for 82,500, and after a review of the case, he should not be disposed to disturb it. »
    The defendants appealed on the annexed grounds.
    1. That it was established by the evidence, that the defendants cut open the old line ditch, and committed no trespass upon the freehold or possession of the plaintiff in relation to the cutting the ditch or removing the fence, and they were not liable to any action on that account.
    2. Because the alleged trespass in entering the close and house of the plaintiff, was the act of persons not under the direction of the defendants, and it was the uncontradicted testimony that defendants repressed and disavowed the act.
    3. That at all events the trespass complained of was slight, and no actual loss of property ensued, and no gross outrage was committed, and the verdict was so unreasonable as to afford conclusive evidence that it was not the result of a fair judgment upon tlm evidence.
    4. Because the Court charged, that the subsequent proceedings, after the opening of the ditch, might make the defendants trespassers ab initio; whereas, the act of marking the line was lawful in risclf, and any quarrel which may have taken place subsequently between the workmen, had no connection with the lawful act of defendants in marking the line, which act could not be rendered illegal by the subsequent transaction.
    5. Because there was no evidence to warrant the conclusion, that the passing into plaintiff’s house was either by the authority of the defendant or sanctioned by him; and no one is responsible but the parties who took part in it; and the testimony was, that the only act done by defendants was to recall the parties.
    6. Because there was no evidence at all that the younger Mr. Hannahan ever left his father’s land, and no evidence that he committed any assault on the plaintiff; and the verdict against him was without any evidence.
    7. Because there were two unimpeached witnesses, who testified expressly that the defendants did not leave their own land, and the jury were not warranted in disregarding their testimony.
    8. Because the verdict was so clearly unwarranted by the law and the evidence, as to render the verdict altogether dis-proportioned to the trespass alleged or proved, and is against the just and impartial administration of justice.
    
      9. Because the verdict is so extravagant, as to amount to a perversion of the law and a destruction of the very notion of legal right, and in fact breaks every barrier which has been established, for the protection of the individual against the influence of public clamor, or private prejudice and caprice.
    10. Because the verdict is in other particulars, and in all respects, contrary to law and evidence.
    Hunt, for defendant, J. Hannahan.
    
    Bailey & Brewster, for J. J. Hannahan, the younger.
    
   Wardlaw J.

delivered the opinion of the Court.

Proof of some injury done to the plaintiff’s right of possession, in the close described, is indispensable to sustain this action. If that proof be made, other enormities embraced in the acts of direct injury which are complained of, or arising by natural and probable consequence from them, may be considered in estimating the damages. And to direct the discretion of the jury in awarding a measure of damages, which over and above a just reparation to the plaintiff, may punish the trespassers according to their evil iteniions, the persons, language and conduct of the defendants immediately connected with the trespass, although prior to it, and not part of it, may be looked into as evidences of wantonness, malignity, or other evil motive. But previous injuries to the rights of third persons, or previous exercises of dominion by the defendants over their own property, however explanatory of motive, cannot, by a subsequent trespass upon the plaintiff, be also made trespasses, so that for the whole he may recover against the defendants as trespassers ah initio.

Whether the plaintiff had any right of possession to the land between the ditch and the road, or to the ditch itself, was a preliminary inquiry: but assuming, as on the circuit was supposed to have been established, that these belonged to the elder defendant, and the plaintiff’s possession of them had been that of a mere wrong doer, the defendant, the owner, had a right to enter and do with the soil as with other portions of his freehold. If he committed a breach of the peace, he was answerable criminally; if he did wrong to the plaintiff’s person, or personal property, for such wrong the plaintiff had his proper action; but for injury to the soil or breach of the close, the plaintiff could not maintain an action of trespass quare clausum fregil, for the soil was the defendant’s, and the title was his justification.

In relation to the matter contained in the 4th ground of appeal, the jury was directed, that under the proof, the elder defendant “had the right to re-open the ditch as a boundary, and if he did no more the plaintiff could not recover: but if he did more than was necessary to that purpose, and in doing it committed in connection with it other trespasses, it might make him and all concerned trespassers ah initio.” If the defendant had the right to re-open the ditch, that right pertained to him as owner, and the exercise of it standing singly, could, under no circumstances, have been a trespass for which the plaintiff could have maintained an action of trespass, viet armis. When the law gives an entry, authority or license to any person, and he abuses it by the commission of some subsequent act of trespass, he will be considered a trespasser from the first entry, or first act done under the authority or license. The meaning of this is, that an entry or act, which, without the authority or license of the law, would have been a trespass, shall even, when done under such authority or license, be, by a subsequent trespass, deprived of the justification which ihc authority or license would otherwise have given. The abuse of the authority or license determines the quo animo, and shows that the first act was not really as the law permitted, but retained the tortious character, which prima facie belonged to it. But if the first act was no trespass upon the plaintiff, whether the purpose of it was lawful or unlawful, or subsequent trespass, (however its motive may have been exhibited by the first act,) cannot operate to confer upon the plaintiff a right of action for that which was no legal trespass upon him. If the right of possession to the ditch had been in a third person, although the plaintiff might, as part of the transaction in explanation of the defendant’s motives in the subsequent invasion of the plaintiff’s soil, have shown their violence concerning the ditch, he could not have recovered damages directly for an entry into the ditch; as to that the right of action would have been in a third person. Much less can the plaintiff reco ver for an entry into the ditch, if the right of possession to it was in the defendant’s themselves, or one of them. They could do with their own as they pleased, subject only to the duty of not injuring others: and for an injury done to others, by abuse of their right over their own, although they might have been liable in case, they cannot be sued in trespass. The conduct of the defendantsas to the ditch, if it was their own, may have appeared harsh and ungenerous; but if it was lawful, should not have been confounded with a subsequent wrong, so as to give to the plaintiff damages for the whole as one continued trespass. Upon other points of the case some remarks might be made, but desirous of a new trial without prejudice, the Court rests its opinion simply upon the misdirection complained of in the 4th ground of appeal, and directs that the motion be granted.

Evans J., and Fkost J., concurred.

Richaudson J. concurred in the new trial.

Heard before Judge Withers’ election.

O’Neael J.,

dissenting. In this case, I have the misfortune to differ from a majority of the Court, who, as I understand them, place their opinion on one of two grounds, viz: 1st. for error of law on the part of the judge below, in ruling that unlawful acts, committed under and in enforcing a right of entry, might make the defendants trespassers ab initio. 2d. for excessive damages. Some of the Court, I believe, predicate their opinion of the 1st ground, and others of the 2d; both however arc, I think, erroneous. 1st. The doctrine of trespass ab initio, as we understand it, may for ought I know, be considered as commencing in the six Carpenters case, 8 Co., 146., although it is manifest from that case, that it has its foundation in much earlier times. That case is, I think, full to the point ruled below. In it, it was first resolved, when li entry, authority or license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio; but where an entry, authority or license is given by the party, and he abuses it, then he must be punished for his abuse, but shall not be a trespasser ab initio.” The distinction taken is between authority derived from the law, and that derived from the party. In the one, abuse makes the whole a trespass, in the other the abuse is alone so regarded. What is meant by entry, authority or license, given by law? Does it mean, as some of my brethren suppose, only cases of that kind, when by virtue of process, or some legal authority, such as a right to distrain, one enters, and then does some thing unlawful? I have no doubt it means all that and a great deal more. Mr. Chitty has, I presume, led to the mistake in his 1st volume of Pleading, 173. He is speaking of personal property, and the effect of an abuse of the possession at first legally acquired. In such connection, he says, the person who first acted with propriety under an authority or license given by law, abuses it, in which case he says, the taking, as well as the real tortious act, may be stated to be illegal. This is all right, and is as far as the matter before him required to be stated. At 180, however, he puts the principle right in reference to land; he says, “though the entry were lawful, yet., by a subsequent abuse of an authority in law to enter, as to distrain, &c., the party may become a trespasser ah initio.” The example given, is, what has led again to the mistake into which I fear my brethren have fallen? How can a mere illustration narrow a legal principle? The right of entry on a man’s soil, in the possession of another, what is that but an entry given by the law? If this must be answered affirmatively, does it not follow that an abuse of this legal right will make the entry as well as the subsequent abuse, tortious? I think there can be no doubt about it. But let it be tested another way. He who is in possession of land, has jorima facie an action of trespass against any one who may enter upon him. The owner, however, who has both title and right of possession, may peaceably enter, and upon showing his title, would be held not guilty of a trespass. Why? Is it not because the law gives him the right of entry? If, however, he enter by force, or after he is in, does acts which show that he did not enter to assert his title, but for oppression or vengeance, does it not follow that his justification in his title, the legal permission to enter, is destroyed by the intention manifested to do wrong; I apprehend it is clear that it is so. And so says Lord Coke in his report of the six Carpenters case “In the case of a general authority or license of law, the law adjudges by the subsequent act, quo animo, or to what intent he entered, for acta exteriora indicant interiora secreta.” In other words, the subsequent act of abuse shows that his right of entry was used to cover his real intention, which was to do other tortious acts. The case of Jones v. Muldrow, Rice, 64, Cheves, 254, may be appealed to as an illustration of my motion. There the plaintiff was in the possession of the defendant’s land. He entered upon him, and committed many acts of violence. The jury found, as here, a large verdict of damages, which was sustained. How could that have been done on any other principle, than that the conduct of the defendant deprived him of his defence, of a legal right to enter by virtue of his title. The 2d ground, beyond all doubt, ought to receive little countenance, when it is remembered, that according to the proof, the defendant is a man of great wealth, and that against him this verdict is less by far than a verdict of §80, which I once heard pronounced against a poor man for blazing a pine tree on a desolate sand hill. There were many circumstances, which, if the jury believed, were surely of great aggravation, such as the entry of the elder Hannahan into Johnson’s, house against the will of his wife; the act of one of the irishmen in company with him, in palling her arm down from the door posts; his encouragement of the Irishmen to pursue the fugitive Englishman into the house, by telling them to tie him up and give him fifty lashes; the opening of the garden by cutting off one entire line of the fence; the defendant’s act in preventing the fence from being so put up inside of the ditch as to protect the garden; the almost entire destruction of the vegetables and flowers in the garden, and the great terror produced in the plaintiff’s family by the acts done by the men in defendant’s employment. Do not such circumstances warrant a heavy verdict? What is to be the limit? Can it be other than the discretion of twelve honest men? It is rare, I think, that an appellate Court ventures against the opinion of the Judge trying the cause, to grant a new trial on the ground of excessive damages. This case however, will constitute the precedent of such being done, not only against the opinion of the presiding Judge, but also against an array of aggravation which has led one jury to find #2500 damages, and may lead another to double it. 
      
       The following is a full report of this case, by the Judge before whom it was tried at Darlington, Spring Term, 1840.
      This was an action of trespass quare clausum fregit. For the facts accompanying the entry, the Court of Appeals is referred to the report made by my Brother Butler, of a previous trial of this case; Rice’s Reports, p. 64.
      The only matters now intended to be submitted to the Court of Appeals, arise out of a recovery had by Gee against this plaintiff, and to them this report will be confined.
      It appeared that the close was beyond all doubt once the property of Thomas Stephenson. As his property, it was sold by the-sheriff of Darlington, Richard Ingram to John Ingram; by John it war, conveyed to Bryant Ingram, by Bryant to Richard Ingram, by Richard to Pleasant R. Gee, who died intestate, having previously sold the land to the defendant Muldrow, but only a bond for titles had been executed. The heirs of Gee for Muldrow brought suit against this plaintiff, and his son James, for the recovery of the land- In that case, this plaintiff would have defended himself by sliowing the sale made by the sheriff of Stephenson’s land to be fraudulent, and th<r,-t his possession was under him: and he accordingly gave evidence to each of these points. It was, however, proved by the plaintiffs, that this plaintiff went into the possession of the land as the tenant of Richard Ingram: the plaintiffs in that case recovered, and this plaintiff was ejected from the possession by a writ of habere facias possessionem, and the defendant Muldrow putin possession. In about a year afterwards, this plaintiff, as the defendant’s tenant, Mrs. Woods, was removing, entered upon the land and retained possession under Stephenson.
      The defendants contended that the plaintiff was concluded by the former recovery, and could not now set up Stephenson’s title. I did not think so. When his tenantcy to Ingram was shown in the former case, he was thereby estopped from relying on Stephenson’s title. The effect of a former recovery is to conclude all matters which were legally in issue, or which might have legally been put in issue between the parties, If Stephenson’s title could not have been adjudged in the former case, it follows that this plaintiff might now set it up.
      It was abundantly proved, that the sale of Stephenson’s land by the sheriff was the basest fraud ever attempted tobe set up in a Court of Justice, and that the defendant, Gee, and all the grantees from the sheriff’s sale, well knew this. This plaintiff was the tenant of Stephenson, and had also his bond for titles.
      The jury found for the plaintiff $600 damages; the defendants appeal on the annexed grounds:
      1. Because the presiding Judge admitted evidence of a title on the part of the plaintiff that had bee* adjudicated on the former trial between Jones and Gee, under whom defendant claimed.
      
        2. Because, if a defendant acquires a title adverse to that of his landlord, it is his duty to give up the possession, and not to put his landlord to his action; and jf he stands a suit, and the suit is determined against him, it concludes all titles existing at the time.
      Daiigan &, Sims, Defendant’s Attorneys.
      
     