Dills v. . Hampton

Ashe, J. (after stating the facts as above). The instructions asked 'by the defendant are predicated upon the idea that this is an action in the nature of trespass quare clausum fregit. If so, there would be error in the refusal of His Honor to give the instructions prayed for by the defendant. But the defendant has misconceived the plaintiff’s cause of action. Upon the facts stated, the nature of the action is trespass on the case, and the instructions asked are not applicable to such an action, and we, therefore, hold there was no error in the refusal of His Honor to give them. When the facts of a case are stated in a “plain and concise statement of the cause of action,” the plaintiff is entitled to any relief justified by the facts proved, and not inconsistent with the pleadings. Moore v. Hobbs, 77 N. C., 65; Knight v. Houghtalling, 85 N. C., 17. The gravamen of the plaintiff’s action is a permanent injury to the freehold. When there is such an injury done to land, and at the time there is a lease upon it, the lessee may sustain an action of trespass quare clausum fregit, and at the same time the' reversioner may have an action against the trespasser for the injury to his reversionary interest in the freehold. Here the plaintiff claimed title to the land, he had leased it to Inman for three years, who had assigned the lease to Bum-garner, and the lease had not expired when the trespass complained of was committed. Bumgarner might have sustained an action for the trespass, if he had not given his consent to it; and the plaintiff clearly had a right of action for the trespass, if he had the title and the trespass worked a permanent injury to the freehold affecting his reversion. Williams v. Lanier, Busb., 30. *570 These are principles too well settled to require the citation of authorities to support them. If Bumgarner had committed the acts complained of by the plaintiff, he would have been liable to the plaintiff in an action of trespass on the ease in nature of waste under the former system of pleading. Waste as defined by Blaekstone, Book 2, page 281, “is a spoil or destruction in houses, garden-trees, or other corporeal heredita-ments to the disherison of him that hath the remainder or rever T sion in fee simple, or fee tail.” The conversion of land from one species to another is waste in England; as to turn arable land into pasture or meadow, or meadow into arable, or arable into woodland, are all of them waste. Ibid., 282. In this State the question of waste depends upon the fact whether the injury to the land works a permanent or present injury to the freehold. Surely then, the turning out arable land, not into woodland, but to the uses of a highway to be trampled upon and cut up by the feet of horses and the wheels of vehicles would be waste much more serious and injurious to the freehold than turning it into woodland or to a different species of husbandry. If Bumgarner would be liable to an action for such an injury as that complained of, he certainly had no right to give permission to another to do the act, and one who commits an illegal act can never justify under a license from one who had no right to give it. The permission then, given by Bumgarner to the defendant could not avail him as a defence to the action. But the defendant contends that the phiintiff had no title to the land, and insisted there was error in the instructions given by His Honor to the jury in the second, third and fourth instructions. As to the second instruction, it is held that thirty years possession of land will presume a grant from the State, although no privity can be traced between the successive occupants. Fitzrandolph v. Norman, N. C. Term Rep., (127) 564; Simpson v. Hyatt, 1 Jones 517. But even if there was error in the instruction, it could not have misled the jury, for the third instruction *571 was clearly right, and laid down the principle which governs the case, to-wit, that the defendant, having procured a license from the lessee, Bumgarner, to enter the land, he could not deny the title of the plaintiff, for the title and possession of the tenant is the title and possession of the landlord. Even if the instruction was erroneous in its application to the facts of the case, it is not ground for a new trial, when the court calls the attention of the jury to the material question on which they are to pass. Lewis v. Sloan, 68 N. C. 557. There is no principle better settled than that a tenant cannot dispute the title of his landlord, and it is also well settled that the doctrine of estoppel, as applicable to tenants, prevails against one who enters or takes possession under a mere license. Bigelow on Estoppel, page 425. In Johnson v. Baytup, 3 A. & E., 188, it was held that where a “lessor of a plaintiff' being, in possession of a house and premises, defendant asked leave to get vegetables in the garden, and having obtained the key for that purpose, fraudulently took possession of the house and set up claim of title; Held, that having entered by,, leave.of the party in possession, she could not defend an ejectment, but was bound to deliver up the premises before she proceeded to contest the title — a mere licenser being in-this respect on the same footing as a tenant.” The same doctrine is maintained in this State in Whitaker v. Cawthorne, 3 Dev., 389, and to the same effect are Glynn v. Grays, 20 N. H., 114; Wilson v. Motly, 59 N. Y., 120; The Hamilton and Rossville Hydraulic Co. v. The Cincinnati, Hamilton and Drayton R. R. Co., 29 Ohio State, 341. The defendant is estopped as licenser of Bumgarner to deny his title, and Bumgarner as tenant of the plaintiff, is estopped to, deny his title, ergo, the defendant is estopped to deny the title of the plaintiff. So there was no error in the third instruction. The fourth instruction was so manifestly correct that it is useless to discusss it or take further notice of it. There is no error. The judgment of the Superior Court is affirmed. No error. Affirmed.