
    Wiley J. Jefcoat and Joshua A. Jefcoat vs. William Knotts and others.
    
      Trespass guare clausum fregit — Damages—Tenants in Common — Oustei—JSfeiu Trial.
    
    In. trespass guara clausum fregit, where no indignity to the plaintiff’s person, or invasion of his personal rights, is shown, the extent of the injury to his proprietary rights forms the true measure of damages.
    The sufficiency of the proof of ouster depends on the nature of the suit in which it is offered.
    What constitutes oustm', in an action of trespass gua/t'e clausum fregit hy one tenant in common against his co-tenant, considered, and a new trial ordered because the evidence of ouster was insufficient to sustain the verdict for the plaintiff.
    BEFORE WITHERS, J., AT LEXINGTON, EXTRA TERM, MAT, I860, 'j
    
    The report of liis Honor, the presiding Judge, is as follows:
    “ The plaintiffs’ action was in trespass guare clausum fregit.
    
    “They and the defendant were owners in copartnership of what was called middle mill, on Pond Branch. Both derived title from old Benj. Jefcoat, the plaintiffs in 1843, the defendant at a subsequent date. The deed from Benj. to the plaintiffs, April 22d, 1843, I have no copy of. It can be annexed to this report. Knotts purchased his half interest from one Bedmon, who bought at a sale of the property of Benj. Jefcoat, made under legal proceedings, or by the Court of Equity, I forget which. Benjamin J. granted to the plaintiffs one-half interest in the middle mill on a condition, which worked a defeasance if not fulfilled, to wit: that they should bear one-half the expense and do one-half the work necessary to keep the mill up, and should not sell their interest. Knotts purchased the land on which the mill stood, or more precisely the tract of land the bounds of which embrace the mill; and the one-half interest in the mill, which remained in old Ben., after he conveyed to the plaintiffs.
    “Prom what precedes it will be obvious that the plaintiffs’ right to maintain their action depended on establishing an ouster by Knotts. That was the great question in the case, as to the right to recover at all. If at all, how much depended upon evidence of actual loss, and aggravation, more or less, if any.
    “The uniform mode adopted by these parties of enjoying their rights was as follows: each party, i. e., the plaintiffs on the one hand, and Knotts on the other, used the mill two months alternately. Such had been the rule before Knotts purchased. In the year 1858, Knotts was entitled to use the mill in June and July, and the Jefcoats in August and September. The latter part of July the mill dam broke, and the parties engaged in mending it. The dam was completed about the 26th August, which was a month of the plaintiffs’, Knotts having lost the use of the mill for the remainder of July, which followed the breaking of the dam. August 27th, 1858, Knotts, defendant, Thos. D. Knotts, Hutto and Huffman, were at the mill. Wiley J., one of the plaintiffs, came and asked Knotts if he did not think it dangerous (having reference to the darn being new) to hold such a head of water. Knotts said he thought not; the other said he thought it was, and he had minded dams long enough, and meant to attend to the water himself; then said to Knotts, ‘What does all this mean anyhow?’ Knotts, ‘I mean to go to sawing.’ Wiley J., ‘If you do, you’ll be a better man than I am.’ Knotts, ' I don’t consider you have any right here. I intend to test your right, and if you use the mill any more, it will be when yo.u get her by law. I forewarn you from interfering or coming about the mill. I hold you as a trespasser whenever you come about it-.’ The witness who detailed the foregoing language added, that they got into 'a quarrel or dispute one way or other, and that broke up the chat.’ Knotts said, ‘Let’s go to dinner.’ Several persons started, and before all got out of the mill, Joshua A., the other plaintiff, came up and asked Knotts what all that meant, and Knotts replied that he meant to go to sawing. Joshua A. to Knotts, ‘Leave here.’ Knotts, ‘I hold you as a trespasser every time you come here,’ and forewarned him or his hands from interfering with any thing about the mill. Joshua A. asked if that was not his time there — if not when would it come in? Knotts, ‘You have no time here.’ Another witness testified that he came up in time to hear the last answer of Knotts, as above recited to Joshua A. It appeared further from this witness, that prior to the day of the scene above recited, perhaps the day next before, (August 26th,) the Jefcoats had taken down the saw frame and other rigging of the saw, with a view to having a new one made and some other repairs done, to go to sawing. It also appeared that Knotts used the mill awhile after'the interview already detailed, how long precisely did not appear. The plaintiffs had never used the mill since. The dam broke again in May, 1859, and had never been repaired, and so the mill had been used by nobody thereafter. In February or March, 1860, Need-ham P. Jefcoat spoke to Knotts about mending the dam, and Knotts said the mill should never run so long as it stood as it was between him and the Jefcoats. It appeared that in April, 1860, Knotts had filed a bill in equity against the plaintiffs for partition. It was said the mill was capable of sawing one thousand feet of lumber a day, worth at the mill the supposed sum of seven dollars per one thousand.
    “ This was the case made by the plaintiffs, upon which a motion for nonsuit was submitted, on the ground that the parties being co-tenants, and the plaintiffs by their own deed being bound to assist in repairing, and Knotts having threatened only to appeal to the law against them as trespassers if they took possession, and having gone to dinner, and left them in possession, there was no ouster proved, and the action consequently fell. I refused the motion, because I thought a resolution of fact must be left to the jury upon which would depend the question of ouster. I considered that Knotts had three others with him; that he necessarily saw the plaintiffs had begun preparations to saw; that the time was unquestionably, for aught that' had appeared, theirs; that his language to them, as above detailed, might bear the construction, by the jury, that he intended to hold them out by force, or at least that the jury might think Knotts intended the Jefcoats so to understand, and gave them grounds to regard that the reasonable interpretation of his conduct and his language; and upon such view I thought it the duty of the Court to reserve the question of ouster for the jury, under instruction on the law upon that subject. Accordingly the motion for nonsuit was refused. I, however, allowed the record to go to the jury upon the case of Huffman, one of the three others jointly impleaded with Knotts, and they returned a verdict for him; and he was examined for the defence.
    “Knotts offered evidence to show that he had lost some of his time in the latter part of July, and had gone to work with six hands, the Jefcoats supplying only four to put affairs in order; that in the progress of the work on the dam, he told one Sharp, who worked for Wiley J., to tell the Jefcoats to send at once an equal force to his, that he might get affairs ready, and make up his time — the words were, ‘finish out his time.' Wiley J. told him to say to Knotts, that he and his brother could not supply hands to cope with his, (Knotts,) but as soon as he got the waste way prised up, he and Joshua A. would put that in order and so supply their equal quota of work. Sharpe said, he told Wiley J., Knotts claimed nine days. (This was while the work on the dam was going on, and before the angry interview which was contended to be an ouster.) Wiley J. said, that would not be fair, for he and his brother never had had any lost time made up. It appeared in evidence further that Knotts asked Joshua A. in October, why he did not use the mill, and Joshua said, it was not his month anyhow, and Knotts having denounced him as a trespasser whenever he came about the mill, he would not as such go about it; that Knotts probably proposed that he (Knotts) should use it two months and then they could use it two. Jefcoat’s reply was not recollected; that the last week in December (in which month Knotts used the mill) he sent a message to the Jefcoats, to the purport that their time would begin on the 4th January ensuing, but they could begin on the first if they pleased. They said, they wrould like to work the mill if they could do it in peace, and if they could they would not take three dollars a day fox it, but Knotts said they had no right there; they had sued, and awaited the result of the action.
    “The defendant made an effort to show that he had a right to make up nine days lost in his month (July) from the breaking of the dam. He failed in that, showing neither agreement nor custom, between these parties or others, to that effect. A witness did say, that in 1855 he was sawing for Knotts, and the waste way started to blow up; the pond was run off and some few days were lost. Allen Jefcoat (a plaintiff) said to the witness on that occasion, ‘We have always divided the lost time,’ and the witness said, it was done in that instance; though Knotts asked him if he was not sawing in the plaintiffs’ time, and he told Mm what one of them had said. Huffman’s account of the interview August 27th, that originated this action, was heard, and so far as he spoke of the language used by the parties as detailed by others there was a substantial agreement with them. But he added tbe following statement, to wit: As Knotts and others were departing for dinner, one of tbe plaintiffs said to the other, ‘What does Knotts mean now?’ and tbe other replied, ‘It seems he wants the whole mill.’ Huffman said, he stated to them that Knotts was only contending for his lost time, that he lacked nine days when his time was out, and the plaintiffs made no reply ; the plaintiffs were left at the mill by.Knotts when he and his party went to dinner, and before they got back, Wiley J. was seen to raise the gate and turn loose the water.
    “ There were various estimates about tbe per diem value of tbe mill — from fifty cents a day, which a witness said both plaintiffs placed it at before tbe Commissioner in Equity on some occasion, or else said they gave that much for it,' up to two dollars a day.
    "Such was this case as made by either side.
    “The following questions were submitted to the jury:
    “1st. Was there an ouster by defendants of the plaintiffs? I held, that if Knotts had the right to use the mill at the time of the interview, and for such time as he claimed to use it and did use it, the plaintiffs’ rights could not be considered as invaded in any form or sense. The jury were cited to tbe evidence on that subject, which was to be found, if found anywhere, only in wbat Redmond said, and in the single instance he referred to only half the lost time was made up. Then, if Knotts claimed and used what did not belong to him, did he do so in such manner as to commit an ouster ? The general test submitted to the jury on that point was: If one co-tenant in possession of the 'common property so demean himself, by words and acts, both or either; as to warrant the other in believing that he must fight for the enjoyment of his right or withhold himself, in such case he has a right to appeal to the law, in the form of this action.
    "2d. If the first question be resolved against the defence— what damages should be given, and against whom ? — I expressed this opinion of my own, to wit: If Knotts invaded the plaintiffs’ rights to the extent of an ouster, which he meant to be, and them to understand to be, permanent, then it should be treated as an aggravated case, and damages rendered against the guilty accordingly; that when Knotts offered to yield, if he did so, it was hard to see a good reason why the plaintiffs held off; and if the mill had been useless by a casualty in May, 1859, not imputable to Knotts, the plaintiffs ought not, as I viewed the case, to have damages for loss ensuing posterior to that time.
    " Such is an epitome of the course of instruction and remark by the Court to the jury. It seems doubtful, whether the grounds of appeal take any exception to the charge; but it is given substantially. A very extended argument at the bar incited too much from the bench by way of summing up and reviewing the chief topics of debate. The presiding Judge never made a more earnest effort to bear himself impartially between parties, especially considering that Greek, met Greek in this closing battle of many that have been fought between them, on the same theatre; and he expresses again, as he did on the trial, the hope that whether the case goes back or not, it may, when ended, prove to be the final close of the war of the Giants of Pond Branch.
    
      “ The jury found for the plaintiffs a verdict of one thousand five hundred dollars against Knotts, and a verdict for the other defendants.
    “ DEED. — State of South Carolina, Lexington District :
    " Know all men by these presents that I, Benjamin Jefcoat, of the State and district aforesaid, have this day granted unto Wiley J. Jefcoat and Joshua A. Jefcoat, of the State and district aforesaid, the half of a saw mill, and the benefits derived therefrom, on big Pond Branch waters of North Edisto river, the mill built by myself and Elijah Jefcoat in company, the said Wiley J. Jefcoat and Joshua A. Jefcoat to have and to hold one-half of the above-mentioned saw mill, upon condition of the said Wiley J. Jefcoat and Joshua A. Jefcoat bearing one-half the expense of keeping in repair the said mill, and doing one-half the work to the said mill; which privilege the said Wiley J. Jefcoat and Joshua A. Jefcoat are not to dispose of without my free consent; which privilege they are to have and to hold as long as the above condition is complied with, and if the above condition is not complied with, then this obligation to be of no further effect; •the above privilege to Wiley J. Jefcoat and Joshua A. Jefcoat, during their life, and after that to their heirs. Signed, sealed and delivered by me, April 22d, 1843, in the presence of us.
    “BENJAMIN JEECOAT. [l. s.]
    "Urbane Jefcoat,
    “Jacob Neese.”
    The defendant appealed, and now moved this Court for a nonsuit, on the grounds:
    1. Because there was no evidence of actual ouster, which was necessary to enable the plaintiffs to maintain this action.
    2. Because the plaintiffs had not the actual possession of the premises at the time of the alleged trespass.
    
      And failing in that motion, then for a new trial on the foregoing grounds, and also because the damages found by the jury are excessive.
    
      Boozer, Fair, for appellant.
    1. One co-tenant or tenant in common cannot maintain an action of trespass guare clausum fregit, against his co-tenant, without proof of an actual ouster; and the evidence in this case failed to make out such a case. 2 Black.' Com. 174, 182;.Oowp. 218; 5 Wheaton, 124; 3 Stephens’ Nisi Prius, 2631; Harman vs. Gartman, Harp. 430; 4 Bacon’s Abr. 328; Martin vs. Quaitlebum, 3 McC. 235; Taylor vs. Stock-dale, 3 McO. 302; Gibson vs. Vaughn, 2 Bail. 389; Bucket vs. Smith, 5 Strob. 27.
    2. Although constructive possession by deed is sufficient to enable a plaintiff to maintain this action against a casual trespasser, actual possession of the locus in guo is necessary to enable him to maintain it against one who intrudes himself into the possession; and in this case, the actual possession was in the defendant. Amick vs. Frazier, Dud. 341; Vance vs. Beatty, 4 Bich. 104.
    3. The damages found by the jury are so palpably excessive as to produce the conviction that the jury must have been influenced by extrinsic circumstances, not connected with the case; and in such a case the Court will grant a new trial. Poppenheim vs. Wilks, 2 Bich. 356 ; Johnson vs. Hannahan, 1 Strob. 313 ; Sheppard vs. Lark, 2 Baih 576 ; Nettles vs. Harrison, 2 McO. 230.
    
      Tradewell, Bauskett, contra,
    cited 1 McO. 131; 1 Mass. 333 ; 4 Strob. 50; Oowp. 218; Oo. Litt. 199; 12 Bich. 474.
   The opinion of the Court was delivered by

Wardlaw, J.

The plaintiffs and defendant are tenants in common of a mill on Pond Branch; they between them owning one-half of the mill, and he owning the other half of the mill and the whole of the surrounding land. At the highest estimate of the witnesses, the profits of the mill when running did not exceed two dollars a day, and the plaintiffs, if disseized at all, were excluded from possession for four months only, and lost about one hundred and eight dollars ; yet the verdict is for fifteen hundred dollars. In actions for tort sounding in damages such as trespass and case, the Court of Appeals rarely interferes with the discretion of the jury to award damages according to the circumstances, unless the damages be so manifestly excessive as to demonstrate the existence of some foreign and malign influence on the jury. Yet in actions of trespass brought for reparation of some injury to the plaintiff’s right to real estate, where no indignity to the person or invasion of the personal rights of the plaintiff appears, the extent of the injury to his proprietary rights forms the true measure of damages. In this case no circumstance of aggravation attends the supposed disseizin; and a new trial might well be granted on the ground that the damages found are excessive.

On the first ground of appeal, we express our dissatisfaction with the sufficiency of the evidence to show such ouster as enabled the plaintiffs to bring this action. There may not have been such utter lack of evidence as to require the Circuit Judge to Avithhold the case from the jury; but there was not enough to justify their verdict. The sufficiency of the proof of ouster depends on the nature of the suit in which it is offered. In ejectment the defendant is required to admit ouster, and in trespass for mesne profits pursuing a recovery in ejectment, little evidence of ouster is requisite.

So in giving efficacy to the presumption of title from long exclusive possession9by one of several tenants in common, tbe evidence of the ouster may be slight. Fisher vs. Prosser, Cowp. 218. In general one tenant in common cannot sue another concerning the possession of the joint estate, as each is seized per my ei per tout, and the possession of one is the possession of both; but the unity of possession may be destroyed by the actual ouster of one of the tenants by the other, and a right of action accrue. 2 Bl. Com. 174, 183; 3 Leon. 262; Co. Litt. 201; 5 Wheat. 124; 1 McC. 132. One tenant in common may disseize the other, but it must be by actual disseizin, as by turning him out or hindering him to enter; and the exclusive perception of the profits is not enough. 1 Salk. 392. Bouvier defines ouster as the actual turning out or keeping excluded a party entitled to possession of any real property corporeal; 2 Bouv. L. D. 256; and he proceeds to say that generally no temporary trespass is an ouster, yet that it may be constituted by any continuing act of exclusion even by one tenant in common of his co-tenant. In our own case of Harmon vs. Gartman, Harp. 430, defendant and one L. were tenants in common of a field, which L. without consent of defendant leased to plaintiff, who planted it in corn; defendant entered and ploughed up part of the planted corn on a portion of the field which he claimed to cultivate by agreement with L. Held, that this was no such actual ouster as enabled one tenant in common to maintain trespass guare clausum fregit against the other. It is not necessary to constitute ouster that there should be forcible ejection of the tenant or a forcible hindrance of his entry. Befusal of his right, attended by circumstances showing the determination of the disseizor to resort to physical force if necessary, is sufficient proof of ouster. In the present case, there was no ejection of the plaintiffs and there was no detention of the possession from them. The defendant disputed their right and spoke of resort to law, but after the altercation between the parties, supposed to evince ouster, the plaintiffs were left in possession of the mill, and one of them raised the gate and turned loose the water. So far as mere words in the altercation went, the plaintiffs might be presumed as reasonably to be disseizors as the defendant.

Ordered that a new trial be granted.

O’Neall, O. J., and Johnstone, J., concurred.

Motion for a new trial granted.  