#### JOHN B. HARRY v. WALTER C. GRAHAM.

A warrant to survey a tract of land, which is not vacant> is void for the want of power, and of course, cannot justify an entry and cutting switches for the purpose of making a survey.

Trespass vi et armis, and not case, is the proper remedy in such a case.

Action of tbbspass guare clausum fregit, tried Before liis Honor, Judge Satjndees, at the Spring Term, 1858, of Cleave-land Superior Court. Pleas, general issue and justification.

There was much controversy about the boundaries of various tracts, owned by the plaintiff and defendant; but only that part indicated in the annexed diagram, is deemed pertinent to the question made in this Court. The defendant justified under the following -warrant of survey:

“ State of Horth Carolina.”

“William II. Cabiniss, entry officer for claims of vacant lands in the county of Cleaveland, to the surveyor of said county— greeting:

“ You are hereby commanded to la}r off and survey for W. C. Graham, one hundred acres of land, on, the waters of Buf-faloe creek, adjoining lands of Hugh Borders, Janies Rippy, *461and his own. Entered 8th of January, 1855, in entry taker’s book, for Oleaveland county. Observing the act of the General Assembly of North Carolina, made and provided for running out vacant land, two fair and correct plans of such survey you are to make out, to be transmitted together with this warrant to the secretary’s office. Herein fail not. From under my hand and seal at office, this 12th day of January, 1855.” Signed by the entry taker with a seal.

One Jolva. R. Logan testified that, being a surveyor, in obedience to the said warrant, he surveyed the land contained in the diagram a, b, c, d, and the defendant cut some, switches, under his direction, to mark the line, temporarily, instead of marking trees, which might serve to mislead, as there were other lines in that neighborhood. The case assumes that the title to this narrow slip was in the plaintiff, who owned several large tracts adjoining each other at this place, and under instruction from his Honor, the jury found a verdict, as to that title, in favor of the plaintiff. It was contended by the defendant’s counsel, that although the land was not vacant, he was protected under the entry taker’s war-ra'nt, in going upon that land in order that it might be ascertained whether it was vacant, and that trespass could not be maintained for such an entry, but if there was any kind of action, which could be maintained, it could only be case for wrongfully and oppressively taking out the warrant. His Honor, by leave of the parties, reserved the question of law with leave to set the verdict aside and enter a nonsuit, in case he should be of opinion with the defendant on the point reserved.

On further consideration, the Court nonsuited the plaintiff, from which judgment he appealed.

Jones, for the plaintiff.

Guión, for the defendant.

Pearson, C. J.

In regard to the field at x, no question is made; the trespass in entering on the land and cutting switch*462es along the lines a, b, c, d, is justified under a warrant of survey ; to which the plaintiff replies, “ de injuria, absque tali causa” treating the warrant of survey as a nullity. The case assumes that the land was not vacant, and the only question made is, as to the form of action.

Supposing the warrant of survey to be applicable to this particular piece of land ; this Court is of opinion, that as the land was not vacant, the warrant was void and of no effect, and did not justify the entry; and consequently, that trespass vi et armis quare olausum fregit was the proper action ; according to a well-settled distinction, i. e., where the process is void for the want of power, trespass vi at cwmis lies. Where the process is valid by reason of the power to issue it, then an action on the case must be brought for taking out, and acting under the the process without probable cause, or in a wrongful and oppressive manner; for instance, if an entry taker should issue a warrant to survey a tract of land lying in another county ; or, if a justice of a peace should issue a warrant to arrest a party for an offense, committed in another county. These warrants would be void for the want of power, and the party, whose land is trespassed on, or whose body is arrested, would recover damages in trespass vi et armis.

So we think a warrant to survey a tract of land, which is not vacant, is void for the want of power, and of course, cannot justify an entry and the cutting of switches, for the purpose of making a survey. The act relative to “ entries and grants,” is expressly confined to “vacant and unappropriated land belonging to the State.” The entry faker has no power to take an entry and issue a warrant of survey for laud which belongs to individuals, and if he does so, his act is a nullity ; so that a party, who makes an entry, acts upon his own responsibility and must see to it, that the laud is vacant and belongs to the State, and is not private property. It was not the intention of the Legislature, by the act under consideration, to empower an entry taker to authorise one man to trespass upon the land of another; that would indeed be, a high exercise of the right of “ eminent domain,” and should be ex-. *463pressed in the most direct and unequivocal terms. So far from such being the case, the power of the entry taker is expressly confined to vacant and unappropriated land belonging to the State.

It is said, according to this construction, persons will, in many instances, be deterred from making entries, although in fact, the land may be vacant, and thus the State may lose revenue. That is so. Many small pieces of land will remain ungranted, because no one will “ take the responsibility.” If the land be in fact vacant, the warrant will protect the surveyor and his party in passing over the land of individuals in order to get to it, there being a right of way ex necessitate implied. But if the land be not in fact vacant, then the warrant is void for the want of power, and can have no force for the purpose of protection and justification. As a matter of expediency, it may be better to allow these little slips of land to be lost to the State by gradually falling into tho adjoining tracts, than to cause the profitless litigation and the ill feeling that would be stirred up, by permitting private property to be interfered with, without some degree of responsibility on the individual who institutes the proceeding. It may be doubted whether the description in the warrant of survey, is applicable to the narrow slip of land, supposed by the defendant to be vacant, and to lie in the shape of a wedge between two grants to Collins. It is difficult to conceive how the description, “ one hundred acres of land on the waters of Buffalo Creek, adjoining the land of Hugh Borders, James Eippy, and his own,” (the defendant’s) can be applicable to this little slip, and if the description in the warrant does not fit, then, of course, it could not authorise the survey. But we prefer to put our decision on the broad ground, that the warrant was void, because the entry taker had no pow'er to issue it,- as the land was not va- ■ cant. Judgment of nonsuit reversed, and judgment for the plaintiff, upon the verdict, upon the agreement in regard to the question as to the form of action.

PER CURIAM, Judgment reversed.