The opinion of the court was delivered by
Mr. Justice McIver.
On the 23rd September, 1886, the plaintiff and the defendant entered into an agreement in writing for the letting or hiring, for the term of two years, of a certain number of tons of iron rails, sufficient to lay a railroad track for the use of the plaintiff, in consideration whereof plaintiff agreed to pay to defendant a stipulated sum of money for the rent or use of said rails on the first day of each month during the said term of two years. The fourth and most material clause in said agreement, so far as this controversy is concerned, is in the following language: “Fourth, that upon the first default, or any subse[426]*426quent default, by the party of the second part in making to the party of the first part the payments in the amounts and on the days as aforementioned, then, upon such default or defaults, the party of the first part shall have the right to take possession of and to remove the said old rails, wheresoever they, or any part of them, may be found, and to hold and use the same, freed of all claims upon them by the party of the second part, his, her, or their executors, administrators, or assigns, or any other person or persons whatsoever ; the said right not to impair or delay the right to sue for and recover the said debt by any other process.” In pursuance of this agreement the plaintiff obtained from defendant iron rails sufficient for the purpose of laying a railroad track about four miles in length, and had said track constructed from a point on -defendant’s railroad, known as “Scranton,” to the distance above mentioned, into heavily timbered lands, the same being connected by a switch with defendant’s railroad at Scranton, for the purpose of transporting timber, lumber, and wood from her steam saw mill and from her lands to defendant’s railroad, to be carried to market.
The defendant, claiming that no part of the stipulated rent had been paid, on the 10th of August, 1887, sent two material trains, in charge of its officers and agents, manned by a sufficient number of employees for the purpose, to Scranton, with instructions to take up the iron rails, place them on the said trains, and remove them from plaintiff’s premises, as it had reserved the right to do, by the fourth clause of the agreement,’upon default in the payment of the rent. When the railroad party reached Scranton, plaintiff was notified of their purpose, whereupon she forbid them from removing the rails. After some further conversation, plaintiff retired to her house, which was near by, and during her absence one of the .officers of the defendant company unlocked the switch, by which the material trains of defendant were enabled to pass from the main track of defendant out on the track constructed by plaintiff with the iron rails in question; and, when plaintiff returned to the scene of operations, she found the railroad party engaged in taking up the iron rails, and placing them on the material trains for removal. As to what occurred then, there is some conflict in the testimony, though there seems to be [427]*427no dispute that plaintiff took her position on the track in front of the material trains with a view to prevent the trains from going out on the main track, and. that she was removed therefrom by one or more of the officers of the railroad company, for the purpose, as they claimed, of preventing her from being injured by the trains. After this the trains moved out on the main track, carrying off the iron rails in question. This is but a very brief outline of the leading facts which led to this controversy; and, for a full and proper understanding of the case, the complaint, written agreement, charge of the Circuit Judge, and the exceptions should be incorporated in the report of the case.
The first exception imputes error to the Circuit Judge in refusing to allow the written agreement which the plaintiff, in her cross-examination admitted to be the contract under which she leased the rails, to be then read in evidence. It seems that while the plaintiff was under cross-examination, the written agreement was shown to her, and she admitted ‘‘her signature to the contract set up in the answer, and that it was the contract under which she leased the rails.” Now, if this contract had been verbal instead of written, we do not see how defendant’s counsel could have been prevented from asking the plaintiff what were the terms of such contract; and it seems to' us that asking the privilege of reading the terms which had been put down in writing was, in effect, the same thing as asking what were the terms of a parol contract which lay at the foundation of the whole controversy .
But, as we think this question was conclusively determined by the recent case of - Owens v. Ofentry, 30 S. C., 490, we need not discuss it further. There the sheriff was sued for certain property which he had seized under a warrant to enforce an agricultural lien, and he justified his seizure and asserted his right to the property under such warrant; and it was there held that the defendant had the right, in the cross-examination of one of the plaintiff’s witnesses, to prove the warrant, and put the same in evidence at that time, because, however it may be in the United States courts and in the courts of some of the other States, the rule here is, that the defendant may, if he can, make out his whole defence in the cross-examination of plaintiff’s wit[428]*428nesses. In the present ease the defendant was sued for a trespass, and undertook to justify, or rather to deny, any trespass, because of a license contained in the very agreement under which plaintiff obtained the property about which the controversy arose. It is urged, however, that, the agreement being signed by other parties as well as by plaintiff, it could not properly be offered in evidence until the signatures of such other parties had been proved; but it will be observed that the plaintiff not only admitted her signature to the paper, but also-admitted that it contained the contract under which she asserted her right to the possession of the iron rails, and this dispensed with proof of the signatures of the other parties.
Again, it is insisted that no substantial injury was done to the defendant by the refusal to allow the paper read at first, because afterwards, when the defendant came to offer its testimony, the paper was duly proved and offered in evidence. If the defendant had the legal right to have the paper read in the first instance, then it was error to deny such right, and we are bound so to declare it. But it might admit of grave doubt whether the defendant sustained no substantial injury by the refusal to allow the paper to be read in the first instance. It is very clear that the terms of that contract1 lay at the foundation of the whole controversy. Without it the plaintiff confessedly had no shadow of right to the possession of the rails; and it was specially set up in the answer as a j ustification for the alleged wrongful acts with which defendant was charged. Upon its construction, which was a matter for the court alone, might depend the question whether plaintiff had any cause of action ; and it is not difficult to conceive how it may have been a very material matter to the defendant to have this written agreement before the court while the plaintiff was undertaking to make out her cause of action.
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The opinion of the court was delivered by
Mr. Justice McIver.
On the 23rd September, 1886, the plaintiff and the defendant entered into an agreement in writing for the letting or hiring, for the term of two years, of a certain number of tons of iron rails, sufficient to lay a railroad track for the use of the plaintiff, in consideration whereof plaintiff agreed to pay to defendant a stipulated sum of money for the rent or use of said rails on the first day of each month during the said term of two years. The fourth and most material clause in said agreement, so far as this controversy is concerned, is in the following language: “Fourth, that upon the first default, or any subse[426]*426quent default, by the party of the second part in making to the party of the first part the payments in the amounts and on the days as aforementioned, then, upon such default or defaults, the party of the first part shall have the right to take possession of and to remove the said old rails, wheresoever they, or any part of them, may be found, and to hold and use the same, freed of all claims upon them by the party of the second part, his, her, or their executors, administrators, or assigns, or any other person or persons whatsoever ; the said right not to impair or delay the right to sue for and recover the said debt by any other process.” In pursuance of this agreement the plaintiff obtained from defendant iron rails sufficient for the purpose of laying a railroad track about four miles in length, and had said track constructed from a point on -defendant’s railroad, known as “Scranton,” to the distance above mentioned, into heavily timbered lands, the same being connected by a switch with defendant’s railroad at Scranton, for the purpose of transporting timber, lumber, and wood from her steam saw mill and from her lands to defendant’s railroad, to be carried to market.
The defendant, claiming that no part of the stipulated rent had been paid, on the 10th of August, 1887, sent two material trains, in charge of its officers and agents, manned by a sufficient number of employees for the purpose, to Scranton, with instructions to take up the iron rails, place them on the said trains, and remove them from plaintiff’s premises, as it had reserved the right to do, by the fourth clause of the agreement,’upon default in the payment of the rent. When the railroad party reached Scranton, plaintiff was notified of their purpose, whereupon she forbid them from removing the rails. After some further conversation, plaintiff retired to her house, which was near by, and during her absence one of the .officers of the defendant company unlocked the switch, by which the material trains of defendant were enabled to pass from the main track of defendant out on the track constructed by plaintiff with the iron rails in question; and, when plaintiff returned to the scene of operations, she found the railroad party engaged in taking up the iron rails, and placing them on the material trains for removal. As to what occurred then, there is some conflict in the testimony, though there seems to be [427]*427no dispute that plaintiff took her position on the track in front of the material trains with a view to prevent the trains from going out on the main track, and. that she was removed therefrom by one or more of the officers of the railroad company, for the purpose, as they claimed, of preventing her from being injured by the trains. After this the trains moved out on the main track, carrying off the iron rails in question. This is but a very brief outline of the leading facts which led to this controversy; and, for a full and proper understanding of the case, the complaint, written agreement, charge of the Circuit Judge, and the exceptions should be incorporated in the report of the case.
The first exception imputes error to the Circuit Judge in refusing to allow the written agreement which the plaintiff, in her cross-examination admitted to be the contract under which she leased the rails, to be then read in evidence. It seems that while the plaintiff was under cross-examination, the written agreement was shown to her, and she admitted ‘‘her signature to the contract set up in the answer, and that it was the contract under which she leased the rails.” Now, if this contract had been verbal instead of written, we do not see how defendant’s counsel could have been prevented from asking the plaintiff what were the terms of such contract; and it seems to' us that asking the privilege of reading the terms which had been put down in writing was, in effect, the same thing as asking what were the terms of a parol contract which lay at the foundation of the whole controversy .
But, as we think this question was conclusively determined by the recent case of - Owens v. Ofentry, 30 S. C., 490, we need not discuss it further. There the sheriff was sued for certain property which he had seized under a warrant to enforce an agricultural lien, and he justified his seizure and asserted his right to the property under such warrant; and it was there held that the defendant had the right, in the cross-examination of one of the plaintiff’s witnesses, to prove the warrant, and put the same in evidence at that time, because, however it may be in the United States courts and in the courts of some of the other States, the rule here is, that the defendant may, if he can, make out his whole defence in the cross-examination of plaintiff’s wit[428]*428nesses. In the present ease the defendant was sued for a trespass, and undertook to justify, or rather to deny, any trespass, because of a license contained in the very agreement under which plaintiff obtained the property about which the controversy arose. It is urged, however, that, the agreement being signed by other parties as well as by plaintiff, it could not properly be offered in evidence until the signatures of such other parties had been proved; but it will be observed that the plaintiff not only admitted her signature to the paper, but also-admitted that it contained the contract under which she asserted her right to the possession of the iron rails, and this dispensed with proof of the signatures of the other parties.
Again, it is insisted that no substantial injury was done to the defendant by the refusal to allow the paper read at first, because afterwards, when the defendant came to offer its testimony, the paper was duly proved and offered in evidence. If the defendant had the legal right to have the paper read in the first instance, then it was error to deny such right, and we are bound so to declare it. But it might admit of grave doubt whether the defendant sustained no substantial injury by the refusal to allow the paper to be read in the first instance. It is very clear that the terms of that contract1 lay at the foundation of the whole controversy. Without it the plaintiff confessedly had no shadow of right to the possession of the rails; and it was specially set up in the answer as a j ustification for the alleged wrongful acts with which defendant was charged. Upon its construction, which was a matter for the court alone, might depend the question whether plaintiff had any cause of action ; and it is not difficult to conceive how it may have been a very material matter to the defendant to have this written agreement before the court while the plaintiff was undertaking to make out her cause of action.
As to the several exceptions which complain of the Circuit Judge in leaving to the jury questions of fact as to whether the rent had been paid, or whether the defendant entered upon the premises of the plaintiff peaceably or by force, we cannot say that there was any error of law in so doing; though, in view of the fact that the plaintiff in her testimony admitted that no part of the rent had been paid in money, and that the defendant had [429]*429never consented to accept the claims which she set up against the company as payment of the rent, it may be that the jury was misled by the manner in which these questions were submitted.
So, too, as to the instructions to the jury in respect to the measure of damages; for, while there may have been but little, if any, sufficient evidence of a wilful invasion of plaintiff’s rights, yet that was a matter for the jury, and, so far as the law contained in such instructions is concerned, we see no error.
As it seems to us, the most material inquiry raised by this appeal is, whether there was error in charging the jury that the license conferred on the defendant by the fourth clause of the agreement “could not be exercised by force, for if the right was so exercised, the defendant would be a trespasser.” Reading this language, extracted from the charge of the judge, in connection with what he said in the same paragraph from which the extract is taken, in the outset of-this charge, to wit: “This action is for trespass to real estate. If there was no trespass, then the other allegations of enormities need not be considered” — we must assume that the charge amounted to this: that “if there was a default in the payment -of the rent, then there was an irrevocable license to enter upon the premises of plaintiff to take up the rails,” but, if this was done, by force, then the defendant would become a trespasser upon the real estate of the plaintiff. We propose, therefore, to consider whether there was error in such instruction.
In the first place, we remark that it is difficult to conceive how one can be regarded as a trespasser upon real estate when he has the permission of the owner to enter; for while, by the manner of his entry, he may commit some other trespass, e. g., upon the person of the owner, it is impossible to understand how he can be regarded as a trespasser upon the real estate, for the permission to enter is utterly inconsistent with the idea that he commits a trespass by availing himself of such permission. If, in making the entry, he commits any other trespass, he may be made liable for that, but he certainly cannot be made'liable for a trespass on real estate. As is said in 1 Add. Torts, § 447, p. 452 : “Where a man is licensed to do a thing, it necessarily implies that he may do everything without which the thing authorized to be [430]*430done cannot be done."” Upon this principle, a person licensed to enter upon the lands of another may use any means, even to the extent of actual force, necessary for the purpose, provided that in so doing he does not commit a breach of the peace.
Thus, in the case of Wood v. Manley, 11 Adol. & E., 34, it was held that where the defendant was licensed to enter upon the lands of the plaintiff for the purpose of removing goods which he had purchased, and the plaintiff, after the sale, had locked his gate, and forbidden the defendant to enter, the defendant was justified in breaking down the gate in order to effect an entrance. Indeed, the decided weight of authority now is, that where one having authority to enter upon the premises of another, commits an assault and battery in so doing, or after he has entered, this will not have the effect of making him a trespasser ab initio ; but if liable at all, he is only liable to a criminal prosecution for the assault, and to a civil action to recover damages for the trespass in committing such assault, and he cannot be made liable as a trespasser upon the real estate upon which he had authority to enter.
This matter is very fully and elaborately discussed, and the authorities reviewed, in the case of Sterling v. Warden, 51 N. H., 217 ; s. c., 12 Am. Rep., 80. As is said in that case: “A person entering by license of the party may so abuse that license as to make himself liable for that abuse by some appropriate action, as, for example, if the license in this case had extended only to permission to enter, without the right to remove the goods, the party might have been liable in trespass de bonis for the removal of the goods, or, if necessary [no doubt, a misprint for unnecessary] force and aggression were employed, he might be held liable in trespass for an assault; but in neither case would he be liable in trespass quare clausum” — citing a number of cases, amongst them Sampson v. Henry (13 Pick., 36), where the dictum of Wilde, J., in that same case, when previously before the court (11 Pick., 379), relied on in the few cases holding a contrary view, was disregarded, and it was held that the action for trespass to the real estate could not be maintained.
The question now presented is analogous to the question which has frequently arisen both in this country and in England, and [431]*431this analogy has been recognized in many of the cases ; and that is, how far a landlord, who regains by force the possession of the demised premises after the possessory right of the tenant therein has determined, can be held subject therefor to any other liabilities than those which the statutes of forcible entry and detainer have expressly annexed to his act. This question has been very fully considered in 4 Amer. Law Rev., 429, and the authorities down to that time (April, 1870) elaborately reviewed. It is there shown that the idea, that one who has authority to enter, and abuses that authority either by unnecessary force in making the entry, or by some illegal act done after the entry has been effected, thereby becomes a trespasser ab initio, so as to make even his entry a trespass, is based largely upon two English cases — Hillary v. Gay, 6 Car. & P., 284, and Newton v. Harland, 1 Man. & G., 644 — the former of w'hich was a nisi prius decision, and the latter has been distinctly repudiated ; and the rule, in England now is, that though the landlord may be liable to an indictment for using force in making the entry, or to a civil action for damages for committing any trespass upon the person of the tenant, either in making the entry or after he has entered, provided a proper case to that end is made, yet he cannot be made liable as a trespasser ab initio on the real estate, because of the use of force in making the entry, or because of the trespass upon the person of the tenant.
This rule appears to have been adopted here in most of the States; and in the few States which have adopted a contrary view, their conclusion seems to rest largely upon the two English cases above cited, which are not now regarded as authority in England. See Stearns v. Sampson, 59 Me., 568; Low v. Elwell, 121 Mass., 309; and Souter v. Codman, 14 R. I., 119. It seems to us, that the view which we have adopted is fully supported by our own cases. 'In Johnson v. Hannahan (1 Strob., 313), it was held that a person cannot be made liable in an action for trespass on real estate for entering upon his own land, and exerting a right of ownership thereon; nor can any unlawful acts committed in the exercise of such right, be so connected w’ith it as to make him liable as a trespasser ab initio. Such acts may be a sufficient ground for the employment of other distinct and [432]*432appropriate legal remedies. The same doctrine is recognized, by way of illustration, in Skinner v. McDowell (2 Nott & McC., 68), though that was a case of trespass de bonis asportatis, and, therefore, not strictly authoritative. So, in Robson v. Jones (2 Bail., 4), which was an action for breaking plaintiff’s close and carrying off his goods, the court, after determining that the goods ■belonged to defendant, said that defendant, having entered by plaintiff’s consent, had a right to use such force as was necessary to go out, and committed no trespass in breaking down the gate for that purpose.
In Muldrow ads. Jones (Rice, 64), the action was trespass quare clausum fregit, in which the allegation was, that defendant had entered by force, and tore down or dismantled the house by unroofing it; and though it appeared that, in tearing off the shingles, one of .them fell on the plaintiff’s wife, it was held that if the defendant had the title and the right to the possession, the action for trespass on the real estate could not be maintained. Butler, J., in delivering the opinion of the court, adopted the language used by Spencer, J., in Hyatt v. Wood (4 Johns., 150), as follows: “If a person, having a legal right of entry'on land, enters by force, though he may be indicted for a breach of the peace, yet he is not liable to a private action of trespass for damages at the suit of the person who has no right, and is turned out of possession.”
The case of Harris v. Marco (16 S. C., 575), is relied on by counsel for respondent, but that was a very different case from this. ' There the action was for the trespass upon the person of the plaintiff, and not upon the property, either real or personal; and it was there very properly held, that the plaintiff had a perfect right to appeal to the court for the protection of her person against the assault, by an appropriate action for that purpose. But here the plaintiff is claiming damages, not for any injury done to her person, but for a trespass upon her real estate ; and the two cases are essentially different. The same remarks may also be made in reference to the case of Davis v. Whitridge (2 Strob., 232), likewise relied on by respondent, where the trespass complained of was an assault upon the person and not upon the property of the plaintiff'. The distinction, it seems to us, is very [433]*433obvious. To apply it to the present case, the fact, that the plaintiff had given a license to the defendant to enter upon her premises for the purpose of removing the rails, did not by any' means carry with it a license to'assault her person; and, therefore, while such license would relieve the defendant from 'any liability for entering upon the premises, because, having a license to enter, no trespass could be committed in doing so; yet, if, while entering, or afterwards, the defendant committed a trespass upon the person of the plaintiff, the defendant might, by an action appropriate to that purpose, be made liable for that trespass, yet we do not see how it could be held liable under an action for another trespass, of a wholly different character. The importance of preserving this distinction is apparent.' Suppose the judgment in this ease, in which the only trespass alleged is the entry by force upon the premises of plaintiff, and the tearing up and removing the rails, should be allowed to stand. What is there to prevent plaintiff from bringing another action for the trespass claimed to have been committed on the person of the plaintiff by removing her from the track when the material trains were moving out on the main track ?
Finally, it is contended that the view which we have adopted tends to encourage tumult and violence, which the law ought not to countenance ; but, as was said in Hyatt v. Wood, supra, “sufficient restraints will be found in the remedy by indictment, and in the liberality with which jurors will give damages where a wrong doer undertakes to enter without right.” Or, as is said by Durfee, C. J., in Souter v. Codman, supra: “For criminal of-fences, the criminal law affords the proper remedy; and the unlawful occupant ought not to be permitted to treat the rightful owner, who simply asserts and maintains his right, as a trespasser, out of regard for the public peace.”
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.