(dissenting).
There is little difficulty in this case if one accepts the testimony at its face value and does not permit it to be overshadowed by the relationship of independent contractor that existed between King and Phillips. There is no doubt that King committed an unlawful act when he entered upon the land of the United States and appropriated the soil without the Government’s permission. It is true that he had the permission of the South Carolina Public Service Authority (Santee Cooper) but that body had only an easement or right-of-way while the United States owned the fee. King took no pains to discover the identity of the true owner, as he was bound to do, and consequently he was a trespasser ab initio and liable for the injuries caused by his negligence in the performance of a tortious act.
King’s liability was admitted in the argument of this appeal and it is in effect conceded by the opinion of this court, for otherwise the extended discussion designed to show that Phillips was not responsible for King’s act would have been entirely useless and vain. The real question for decision is whether Phillips consented to and participated in King’s unlawful act, for it goes without saying that if he did, he is not excused on the ground that King had the status of an independent contractor.
King gave the testimony set out in the following questions and answers with respect to the point in issue:
“Q. When it came to getting dirt, who did you tell? A. Mr. Covington and Mr. Eubanks,* both together, what I intended to do.
“Q. Mr. Covington and Mr. Eu-banks? A. Yes and Mr. Covington told me in front of Mr. Eubanks-, to haul dirt from this place. Hedidn’t care where I got it. I also-told him I wasn’t going to touch it. until I got a letter in writing from Santee Cooper telling me to do. it,, which I got.”
Eubanks testified that he knew that King was getting the dirt from the right-of-way and putting it in place in the-performance of his contract in the housing project. Hence it is plain that Phillips had prior knowledge of King’s act and expressly consented thereto and accepted the fruits thereof. Under these circumstances Phillips’ conduct cannot be excused on the ground that it consisted merely of the casual receipt of information in which he had no interest. Nor can it be fairly said that in Phillips’ conduct — -“There was nothing approaching a command or an instruction or even a suggestion. There was no meddling, no exercise of control”. Participation in the trespass was shown by Phillips’ prior knowledge, consent, and acceptance. The-case falls clearly within the rule well expressed in the following passage from Ketchum v. Newman, 141 N.Y. 205, 36 N.E. 197, 198:
“Where a trespass has been committed upon the rights or property of another, by the advice or direction of a defendant, it is wholly unimportant what contractual or other relation existed between the immediate agent of the wrong and the person sought to be charged. The latter cannot shelter himself under the plea that the immediate wrongdoer did the act in execution of a contract, or that he came within the definition of an independent contractor as to the performance of the work in the execution of which the tortious act was committed. If he advised or directed the act, his liability is established.”
Covington was the vice-president and general superintendent of Phillips and Eu-banks was the field superintendent in charge of this particular contract.