Markham v. Brown , 37 Ga. 277 ( 1867 )

Walkek, C. J.

This is an action of trespass, brought by the plaintiff in the Court below, against the defendants, for breaking and entering upon his premises, in the county of Fulton, known as the Davis place, and taking possession of the same, including the dwelling-house and other houses situated thereon, and expelling him therefrom for the space of eight months, and for other wrongs and injuries, done to him by the(defendants.

The right of enjoyment of private property in this State being an absolute right of every citizen, every act of another which' unlawfully interferes with such enjoyment, is a cause of action. The bare possession of lands authorizes the possessor to recover damages from any person who wrongfully in any manner, interferes with such possession. The person having title to lands, if no one is in possession under the same title with him, may maintain an action for trespass thereon. Where two persons claim to have actual possession of the same land, he is deemed in possession who has the legal title, and the other is a trespasser. The owner of realty, having title downwards and upwards indefinitely, an unlawjul interference with his rights, below or above the surface, alike gives him a right of action. Revised Code, sections 2962, 2965, 2966 and 2969. The entering the dwelling-house of another without license, is a trespass, in the eye of the law. And if one enter the dwelling-house of another by permission, and continue there; after he has been requested to leave it, he becomes a trespasser ab initio. Adams vs. Freeman, 12th John Rep. 404. This action may be maintained', not only against the party who did the act, but against all who direct or assist, in the commission of it. 2d Leigh’s Nisi Prius 1443. Thus a party may be sued in trespass in respect of his previous consent, or request, that the trespass may be done, as if A command or request B to beat, or impress C, or to take his goods, or to commit a trespass on Ms land, and B do it, this action lies as well against A as against B. 1st Chitty’s pleading, 181. 7th Comyns Dig. top page 515, letter C. There are no accessories in trespass, but all are .principals. Ib.

The defendants in this case, however, seek to justify themselves for the alleged trespass-on the plaintiff’s property, on the ground that they were acting as the Justices of the Inferior Court of Fulton county, and in their official capacity, seized and took possession of the same for the purpose of establishing a small-pox hospital, and upon the trial of the case in the Court below, the Court charged the jury, amongst other matters connected with the trial, “ that if you shall believe from the evidence that the defendants, as Justices of the Inferior Court of Fulton county, did take possession of the plaintiff’s property, and if you shall further believe from the evidence, that the necessity was such that the public good required the seizure of the plaintiff’s property at that time to prevent the spread of this contagion, then the defendants are not liable.” This charge of the Court is excepted to and assigned as error. By the act of 1862, the provisions of which are incorporated in the Revised Code, the Justices of the Inferior Courts of each county in this State, within which the small-pox has appeared or may appear, are authorized and empowered to provide a suitable hospital for those so afflicted, and also to provide proper quarantine regulations to prevent the spread of the disease. Revised Code, sections 1411, 1412. The property of the plaintiff is alleged to have been seized on the 9th day of January, 1863, prior to the adoption of our present State constitution, but the constitution of the United States declares, “ Dor shall private property be taken for public use without just compensation.” This great fundamental principle, embodied in the constitution of the United States for the protection of the private property of the citizen, was recognized to be of binding force in the Courts of this State in Young vs. Harrison et al., 3d Kelly’s Rep., 31. It is to be noted that the act of the legislature authorizing the Inferior Courts to provide suitable hospitals for small-pox patients, makes no provision for compensation, from which we infer that it was not contemplated that primate property should be taken or impressed for that purpose. The right of the Inferior Court to provide hospitals for small-pox patients, under the law, is one thing ; but their right to seize or impress the private property -of the citizen for that purpose, is another and quite a different thing. JSTo express power is given them in the law to do so, and we cannot give it to them by implication.

The main question involved in this case has already been decided by this Court on an application for injunction between these same parties. Markham vs. Clark Howell et al., decided at July Term, 1863, at Atlanta. In that case, this Court said “that the defendants were authorized to establish a hospital, did not confer the right to impress. This is a too dangerous and extraordinary power to be conferred by mere implication; it must be expressly granted, and must provide in the grant the mode of compensation.” The power to seize the plaintiff’s property in this case, is attempted to be derived from section 2200 of the Revised Code. That section of the Code only extends to the taking possession of a house, or surrounding it with a guard, in which a contagious disease exists, to prevent its spreading — a mere quarantine regulation.

It has been insisted here that the defendants acted in their official capacity in good faith, in seizing the plaintiff’s property for hospital purposes, under a pressing necessity to prevent the spreading of a loathsome disease, and that it will operate harshly to make them liable as trespassers in their individual capacity. We feel the full force of the argument; but the reply is, that the plaintiff claims before this Court-to have his constitutional rights protected, that his rights of private property have been invaded without lawful authority by the defendants, and demands redress therefor at our hands, and so believing, we are bound to give it to him so far as to adjudge the law in his favor. It is our judgment, that under the law the Justices of the Inferior Court of Fulton County had the power and authority to provide a suitable hospital for small-pox patients; but they did not have the power and authority, under the law and constitution, to seize or impress the plaintiff’s private property for that purpose, as set forth in this record, and that the Court below erred in its charge to the jury upon this branch of the case.

Let the judgment of the Court below be reversed.