#### MRS. MILDRED MAE LEE and A. E. JERNIGAN v. HARVEY STEWART.

(Filed 9 October, 1940.)

1. Trespass § la—

Every unauthorized, and therefore unlawful, entry into the close of another is a trespass.

2. Trespass § 4—

Evidence showing a trespass is sufficient to defeat a motion for judgment as of nonsuit, since upon such a showing the party aggrieved is entitled to nominal damages at least.

3. Same — Evidence held to show unauthorized entry into the close of plaintiffs.

The evidence tended to show that defendant had been notified to stay off the *locus in quo,*that nevertheless he entered upon the land and went into a tobacco barn thereon. One plaintiff was the tenant of the other plaintiff. Defendant testified that before going on the premises he got the permission of the tenant’s wife, but she testified that she did not give him permission to do so. It further appeared that the tenant was a share cropper. *Held,:*The evidence is conflicting as to whether the tenant’s wife consented to defendant’s entry, and there was no evidence that she had authority to permit him to go on the premises, and therefore nonsuit on the ground that the entry was authorized, is error.

4. Same — Where evidence shows unauthorized entry, contention that non-suit should be sustained for want of evidence of negligent injury is untenable.

The evidence tended to show an unauthorized entry by defendant upon the *locus in quo,*that defendant went into a tobacco barn on the land, moved the tobacco therein at a time when it was dry and brittle, placed tobacco of his own in the barn and renewed the fire, and that shortly thereafter the barn burned to the ground. Plaintiffs’ evidence tended to show that when defendant moved the tobacco at least one stick fell and other tobacco shattered and fell about in the barn and on the flues. Defendant’s evidence tended to show that he removed all shattered tobacco and left the flues clear. *Held:*Defendant’s contention that the judgment as of nonsuit should be sustained for want of evidence of negligence is untenable, since proof of trespass entitles the aggrieved party to nominal damages at least, and further, the conflicting evidence as to damage inflicted is for the- jury.

5. Trespass § 7—

,A trespasser is liable for all damages which proximately result from his wrongful act, whether produced intentionally or through negligence, and the mere fact of wrongful entry entitles the party aggrieved to nominal damages at least, and therefore conflicting evidence as to whether the trespasser was guilty of negligence resulting in actual damage merely raises a question for the jury.

Appeal by plaintiffs from *Thompson, J.,*at April Term, 1940, of JohnstoN.

Reversed.

*288Civil action, to recover damages for trespass, *quare clausum, fregit.*

Plaintiff Lee is the owner of a tract of farm land in Johnston County and the plaintiff Jernigan is the tenant living thereon and cultivating the same. On 6 August, 1939, plaintiff Jernigan had just completed curing a barn of tobacco. The tobacco was “killed out” and there was just enough fire in the furnace to burn three or four hours as the heat dropped. The defendant, a neighbor who had been notified to stay off of the land of the plaintiff and “not bother nothing on my place,” in the absence of both plaintiffs, went to the tobacco barn, moved the tobacco about so as to make room for about 40 sticks of swell stem tobacco he wished to kill out. He then renewed the fire in the furnace. In moving the tobacco in the barn, which was dry from the heat of curing, it shattered and fell all about in the barn on the flues and at least one stick of tobacco fell. About 30 minutes after defendant left the barn fire was noticed in the barn which was completely consumed.

The defendant alleged in defense that before putting his tobacco in the barn of plaintiffs he procured the assent of the wife of plaintiff Jerni-gan ; that he caused all leaves and foreign matter to be cleared off of the dirt floor of the barn around the flues and that the fire was not caused by any misconduct on his part.

At the conclusion of plaintiffs’ evidence the defendant moved for judgment as of nonsuit. The motion was allowed and judgment of nonsuit was entered. Plaintiffs excepted and appealed.

*Lyon ■& Lyon and L. L. Levison for plaintiffs, appellants.*

*E. J. Wellons for defendant, appellee.*

BabNhill, J.

An invasion of the close of another . . . constitutes a trespass. 26 R. C. L., 939. An entry on land in the peaceable possession of another is deemed a trespass, without regard to the amount of force used. Neither the form of instrumentality by which the close is broken nor the extent of the damages is material. 26 R. C. L., 938. Thus every unauthorized, and therefore unlawful, entry into the close of another, is a trespass. *Dougherty v. Stepp,*18 N. C., 371; *Brame v. Clark,*148 N. C., 364; *Frisbee v. Marshall,*122 N. C., 760.

Where a trespass is shown the party aggrieved is entitled at least to nominal damages. *Little v. Stanback,*63 N. C., 285; *Lumber Co. v. Lumber Co.,*137 N. C., 443; *Hutton v. Cooke,*173 N. C., 496, 92 S. E., 355; *Lee v. Lee,*180 N. C., 86, 104 S. E., 76; *Frisbee v. Marshall, supra; Dougherty v. Stepp, supra; Brame v. Clark, supra;*Cooley on Torts (2d), p. 70. 1 Joyce on Damages, sec. 8.

Thus it appears that there is ample evidence of a trespass by the defendant which would entitle the plaintiffs to nominal damages at least and defeat a motion for judgment as of nonsuit.

*289But tbe defendant contends tbat be bad tbe assent of Mrs. Jernigan and tbat bis entry was by permission and not unlawful. .Tbis contention must fail for two reasons: (1) Mrs. Jernigan testified tbat sbe did not give permission but tbat sbe told tbe defendant bis conduct would be dangerous; and (2) even bad sbe given ber consent there is no evidence tending to sbow authority so to do. Furthermore, while it is not entirely clear, tbe record indicates tbat Jernigan was a share crop tenant. If so, bis possession is tbe possession of tbe landlord. However tbis may be, both tbe landowner and tbe tenant are parties plaintiff.

Tbe defendant further insists here tbat tbe judgment of nonsuit should be sustained for tbat there is no evidence of negligence. Tbis position is taken upon tbe assumption tbat tbe complaint states two causes of action, one for trespass and one upon negligence. Tbis is not tbe case. Tbe plaintiffs allege, in effect, tbat tbe defendant committed a trespass and in furtherance thereof so negligently bandied tbe tobacco in tbe barn and wrongfully renewed tbe fire as to materially enhance tbe damages caused by tbe trespass. Tbe action remains one in trespass and tbe defendant is liable for all damages which proximately resulted from bis illegal act. In law be is required to contemplate all damages which proximately resulted from bis wrongful act whether or not produced intentionally or through negligence. “It is wholly immaterial whether tbe defendant in committing tbe trespass actually contemplated tbis, or any other species of damage, to tbe plaintiff.” *Johnson v. R. R.,*140 N. C., 574; *Brame v. Clark, supra.*

Considered in tbe light most favorable to tbe plaintiffs there is evidence tending to show tbat tbe defendant went to tbe tobacco barn of tbe plaintiffs and moved tbe tobacco therein at a time when it was dry and brittle; tbat tbe tobacco shattered and fell all about in tbe barn and on tbe flues and at least one stick fell; tbat tbe defendant then renewed tbe fire. "Whether tbis was tbe proximate cause of tbe burning of tbe barn and tbe consequent loss is for tbe jury. True, tbe defendant asserts tbat be removed all of tbe shattered tobacco and left tbe flues completely clear thereof before adding additional fuel to tbe fire. Even so, tbis is in defense and is for tbe jury.

Tbe judgment below is

Eeversed.