Bridgers v. . Dill

Davis, J., (after stating the facts). The exception to the evidence of Bridgers, objected to by defendants, cannot be sustained. The trespass was repeated as often as the plaintiff would put up his fence; it was a continued trespass, and the case is unlike that of Roberts v. Cole, 82 N. C., 292, where the damages were properly limited to such sum as would repair and put the fence in order, and cover the injury done to the crop, before the plaintiff knew of the trespass. But if the evidence excepted to was at all amenable to the-objection that it was speculative and too remote, it was cured *226 by tlie charge of the Court. The case of Sledge v. Reid, 73 N. C., 440, relied upon by counsel for defendants, is distinguishable from this. In that case, which was an action to recover damages for the killing of two mules, it was held that the proximate damage to the plaintiff, was the loss of the mules, and his failure to make a crop was the secondary ■consequence, resulting from the damage, and was too remote and uncertain; but in this case, the injury to the crop was the direct and proximate damage resulting from the wrong of the defendants in repeatedly pulling down the fence and exposing the crop to the prey of cattle. It is insisted that the public have an interest in railroads, and the grants of power by the State to build them are for the public benefit, and the right to acquire real estate and rights of way is secured to them bjr law. This is true, and for all damages necessarily incident to their construction, the statute provides, but they are liable for any damages that may occur to individuals by reason of any improper or wrongful acts done by them. Meares v. The Commissioners of Wilmington, 9 Ired., 73, and the section of The Code, 1943, ■et seq., relied on by defendants, relate to the mode of acquiring title to real estate, right of way, &c., by railroad corporations, and have no application to this action, which is to recover damages for injury to crops outside and off the right of way; and besides, it is not alleged, nor do the pleadings disclose the fact, that any title or right of way was ever acquired by the defendant, as provided by sections of The Code referred to, and the case of Holloway v. University Railroad, 85 N. C., 452, and R. & A. Air-Line R. R. Co. v. Wicker, 74 N. C., 220, are not applicable. The second prayer for instructions to the jury was also properly refused. In this action, Dr. Stancil was not a necessary party, and the relation between him and the plaintiff did not affect the rights of the plaintiff as against the defendants. While it *227 is true that under §1754 of The Code, the crops shall be deemed and held to be vested in possession of the lessor, this is only for the lessor’s protection, and, as against any one except him, the tenant is entitled to the possession of the land and of the crop while it is being cultivated, and may maintain, in his own name, an action for any injury thereto, and for this purpose he is the “ real party in interest” within the spirit and meaning of §177 of The Code. The remedy given to the landlord by §1754, and the subsequent section providing for the protection of the tenant’s rights, make it quite clear that it was intended only by those sections to adjust the rights of the landlord and tenant as between themselves. In this case, the defendants were told by the landlord, Dr. Stancil, that he claimed no interest in the matter, and they must look to Bridgers, the plaintiff, for any arrangements they might wish to make. There is no error. The judgment of the Superior Court is affirmed. No error. Affirmed.