Clement v. . Foster

71 N.C. 36

• Court: Supreme Court of North Carolina
• Decided: June 5, 1874
• Status: Published

Opinion

Fearson, O. J.

We concur with his Honor. The injunction ought to have been dissolved, both on the merits and on the question of practice.

If during his operations, in respect to the fence, Lanier -crossed the -line, the remedy of Jordan is -by .a civil action for injury to real estate, whieh corresponds with the old action, ■trespass guare .clausum firegii.

And it may be that if Lanier confined himself to his own side of the dividing line, still if he broke the fence, which had been before used as a common means of protecting the crops, without giving reasonable notice to Jordan of h-is intention to •do so, he could be sued for consequential damages in an action corresponding with trespass on the case,” at all events such conduct on the part of Lanier would not have been consistent with good neighborship.

We are unable, -however, to see any principle on which this .-question of boundary or of consequential damages can be lugged into the proceeding of Clement, Adm'r, v. Foster, et. al., to sell land to pay debts, the parties to that proceeding have no concern whatever with the difference between Jordan and Lanier in respeet to the fen ce and would have cause to complain should that proceeding be complicated and delayed by a -matter in whieh they have no interest. The cases Rogers v. Holt, Phil. Eq., 108; Mason v. Miles, 63 N. C., 564; Mason v. Blount, 65 N. C. Rep., 99, have no application to our case. In the cases of that class some or all of the parties to an action or .proceeding still pending had an -interest in the matter of the motion. No one of the parties to .the proceeding Clements, Adm'r, v. Foster, et. al., have any concern whatever in the •matter of this motion.

There is no error.

Per Curiam. Judgment affirmed.