This action was brought for putting up a house on plaintiff's land. It appeared that the land trespassed upon had been conveyed, a few years before, by defendant to plaintiff; that in the conveyance there was a reservation by the defendant of a right of way along an avenue through the land; that plaintiff purchased it for a business site; that he erected a storehouse on it, fronting the avenue and near to it, and was then carrying on a mercantile business, when the defendant, becoming unfriendly, put up a warehouse for his own use in the avenue, immediately in front of the store, the corner of the house being about 7 feet from the plaintiff's store, and extending along its side somewhat obliquely. This warehouse was put up by defendant against the remonstrances of plaintiff, he being present and endeavoring ineffectually to prevent it. The warehouse was so close to the store as to darken it and make it liable to smoke when the wind was from a certain quarter, and it was impossible to turn a cart before the storehouse fronting the avenue, thus greatly impairing its utility and agreeableness as a place of business. The avenue above mentioned had been laid out by the person from whom defendant purchased, and was used by him as a passage from his dwelling to the public road, and had been so used by the defendant; it had also been used by the public for the space of twenty-five years or more, but no jurisdiction over it had at any time been assumed by the county court, and it continued to be (273) called after the owner of the land (Askew Avenue.)
Two points were made: First, whether the action of trespass would lie; and, secondly, whether vindictive or exemplary damages could be given.
Upon a finding by the jury that this was a way laid off by the person under whom the defendant claimed for his private use, and subsequently used by all who wished the permission from said former owner or from defendant, with no claim at any time of a right of way by the public, the court held that it was a private way, and the dominion and right of soil continuing in the owners (the Askews) passed by the conveyance to Hays, and gave him such a right to the locus in quo as to make the action of trespass the proper remedy.
The court furthermore thought that if the trespass was committed forcibly, in the plaintiff's presence, and under circumstances of insult *Page 212 and oppression (that is to say, if the jury found so), they were at liberty to go beyond the simple pecuniary injury and give exemplary or vindictive damages. Under instructions accordingly, the jury found for plaintiff. Judgment. Appeal by defendant. We concur with his Honor that trespass quareclausum fregit is the proper form of action. But we do not think the evidence makes a case where the jury are at liberty to give vindictive damages. We can see no evidence of personal indignity offered to the plaintiff, or of "insult or oppression," other than such as ordinarily occurs when two men differ as to their right to a piece of land, and one, in the confident belief that it is his property, takes possession in the presence of the other, and contrary to his remonstrance, and is determined to assert his right of property at the risk of the consequences. (274) That the defendant had some ground to believe that the land belonged to him is apparent from the fact that the question of title depended upon the construction of a deed which was decided in his favor in the court below, although otherwise held in this Court, on the ground that the reservation gave to the defendant only a right of way, as distinguished from a right of property in the soil. Hays v. Askew,50 N.C. 63.
And that he actually believed the land belonged to him is apparent from the fact that he built a house on it, which, if it turned out that the land belonged to the plaintiff, would pass with it, so that he might use or otherwise dispose of it without paying anything for it.
As the defendant, after his entry, retained the possession of the house and the land on which it stood, the plaintiff was only entitled to recover for the original entry, and could not allege a trespass with a continuendo from day to day until he had regained the possession, so as to have the benefit of the jus postliminii. There is error.
PER CURIAM. Venire de novo.
Cited: Hays v. Askew, 53 N.C. 228. *Page 213