Agnew v. Jones , 74 Miss. 347 ( 1896 )

Stockdale, J.,

delivered the opinion of the court.

A. M. Agnew’s agreement that he would make a deed to Hinds county to the acre of land on which the house was to be erected, was an irrevocable license for the purposes for which it was made, as long as the house was used for the purposes specified. The heirs of Agnew have all the rights, and no more, that their ancestor had.

The license, had the deed been made or not made, deprived the grantor of the possession and use of his land, only so far as was stipulated in the agreement or the deed, and only to those in whose favor and for whose use the license was given, and he is the owner and possessor against the balance of the world. One owning land over which others have the right of way, has such property in the right of way as will support trespass. Am. & Eng. Enc. L., vol. 26, and cases there cited, p. 592.

If Mr. Agnew granted the license to build and use a schoolhouse, the land to revert to him when the school was abandoned, then the license ended in September, 1894, and his heirs were the absolute owners in January, 1895, when appellee tore down the house. If the license was for the erection of a schoolhouse, and when the school failed it was to stand there as a house of worship, no one had the right to sell or remove it while so used; and probably it still exists, for the same people have rebuilt a house, as the record shows.

If the land reverted when the school ceased, and the title of the house did not go with it, it must have remained in somebody, and by what legal process it got into the respectable gentlemen who met at Forest Hill seems to be a problem. The county had made no transfer, nor had Kelly, Hawkins or Agnew. If the gentlemen who met at Forest Hill had no title, Jones, the appellee, acquired none. They were all utter strangers to the whole transaction of building that house, and a meeting of school patrons in any corner of the county would have had the same right. Not one of them had contributed a cent to build it, nor did they patronize the school held there. Even if they had a title to the house, appellee could not enter without consent, except by process of law, and the minors did not consent. None but that community had a right to enter that house for any purpose, and that community only for the purposes of schools and worship. Agnew himself could not enter for any purpose but as above. No one would contend that the people of that community even could have held political meetings or lodge meetings in that house, nor on that acre of land, without Agnew’s consent, because his grant did not include such purposes, and he still owned what he had not granted. It would seem that it was his duty to preserve that property inviolate for its proper uses, having induced the people to build there, and particularly against people who would destroy it utterly — the grant was not for that purpose.

What is a trespass ? Every entry upon the land of another, without lawful authority, is a trespass, though it only be trodden, and whether the land be inclosed or not, and no matter whether any damage be done or not. The gist of the action is the wrongful entry; whatever is done after that is but aggravation of damages. If a man’s land be not inclosed, the law encircles it with an imaginary inclosure, to pass which is to break and enter his close. The mere act of breaking through this imaginary boundary constitutes a cause of action, as being a violation of the right of property. Waterman on Trespass, vol. 2, pp. 219, 220, sec. 810, citing many cases; Am. & Eng. Enc. L., vol. 26, p. 592.

While Agnew had no right to the house to occupy it for private use, he certainly had an interest in it as one of the builders and one of the community — to have it remain there as a schoolhouse and as a house of worship, and to have it remain in that place on his land, and his heirs were damaged by its removal.

It would be a dangerous doctrine to establish in this country, that those who deem themselves owners of any ¡moperty situated on another’s premises may enter without leave and take it without invoking the process of the law. Buildings are presumed to be part of the realty until the contrary is shown, and that must be done in the courts.

A squatter on public lands cannot remove his buildings, however temporary, without the consent of the man who entered the land from the government. Welborn v. Spears, 32 Miss., 138. It is a trespass to enter the land of another, without his consent, to take one’s own personal property. Heerman v. Vernoy, 6 Johns., 5; Blake v. Jerome, 14 Johns., 406; Newkirk v. Sabler, 9 Barb., 652. In view of these principles, it was error in the court below to give instructions two and four. The latter instruction, four, is in these words: “ If the jury believe from tbe evidence that Mr. Agnew, the ancestor, agreed to make a deed to the acre of land on which the house was located, and it was agreed and understood that the house should never be the property of Mr. Agnew if put on the land, but should be for school purposes, or other public purposes, they must find for defendant.” This instructs the jury that if a deed was agreed to be made by Agnew, without saying to whom or what sort of deed, and that Agnew was not to own the house, but it should be for school purposes, or other public purposes no matter what, then appellant had the right to enter and tear it down and take it away. The scope of this instruction is to license any man to enter any other man’s land and tear down and carry away any house that the party in possession does not own. This instruction is not cured nor assisted by number two; it is subject to the same objection to a less extent.

The judgment of the eourt below is reversed and the cause remanded.

Woods, C. J., concurs. Whitfield, J., dubitatur.