Dupre v. Tilghman Lumber Co.

June 28, 1920. The opinion of the Court was delivered by This is an action brought by the plaintiff against the defendant for cutting and removing the timber. The complaint contains two causes of action, one for forcible entry and detainer, and the other for wilful and malicious trespass. When the case was called for trial before Judge McIver, and a jury, plaintiffs' counsel announced that they would go to trial upon the cause of action for forcible entry and detainer. At the conclusion of the evidence for the plaintiffs, defendant moved for a nonsuit on the ground, practically, that there was no evidence to sustain the action for forcible entry and detainer. This motion was granted, and plaintiffs appeal.

The exceptions complaining of his Honor in granting the nonsuit which are 1, 2, 3, and 4, must be overruled. The evidence in the case does not show any force used for entry and detainer, and there is no allegation in the complaint to that effect, and the plaintiffs' evidence fails to make out a case of forcible entry and detainer under Code of Laws 1912, vol. I, secs, 4068 and 4069, and under the decisions of the Court in DeLaine v. Alderman, 31 S.C. 267, 9 S.E. 950; State v. Bates, 87 S.C. 527,70 S.E. 170, and Sease v. Barnwell Lumber Co., 113 S.C. ___,101 S.E. 567.

The entry upon the land for the purpose of cutting and removing timber merely would make the defendant a trespasser only, and would not be sufficient to sustain an action of forcible entry and detainer.

The law of trespass provides a remedy for an unlawful entry, cutting and removing timber. As to the fifth exception, the plaintiff had elected to go to trial upon the cause of action for forcible entry and detainer, and after nonsuit was granted he moved to reinstate the cause of action for trespass, which was refused, We think plaintiffs should have been allowed to do so, provided the case should be continued or then tried if the other side consented.

The order of nonsuit appealed from is modified, and the case remanded for trial of the cause of action for trespassquare clausum fregit or if plaintiffs see fit to apply to the Circuit Court for an order amending the cause of action.

Affirmed.