¶1The distinction between an action on the case, and an action of trespass, is in effect, though not in terms preserved by the Code. For a tort committed with force and intentionally, the immediate consequence of which is injury, trespass is the appropriate remedy. If the injury proceeds from mere negligence, or is not the immediate consequence of the tort, case is the appropriate remedy.—Bell v. Troy, 35 Ala. 184. A failure to observe this distinction, is the error pervading the instructions given, and the refusal of instructions by the Circuit Court. Each count of the complaint is in trespass, averring an intentional and forcible injury. Evidence of an injury resulting from the negligence of the defendant in permitting his stock to run at large, though he may have known of their propensity to break the plaintiff's enclosures and trespass on his growing crops, would not authorize a recovery.
¶2It is the right of every owner to permit his cattle and stock to run at large; those who would avoid injuries to their lands from the exercise of this right, must enclose *458against them.—N. & C. R. R. Co. v. Peacock, 25 Ala. 229; M. & O. R. R. Co. v. Williams, 53 Ala. 595. The statutes with particularity prescribe the character of the enclosure, the owner of lands must provide, to protect himself against the intrusions of cattle or stock running at large; and in express words declare that “if any trespass or damage is done by any animal breaking into lands not inclosed,” as is prescribed, the owner is not liable therefor. Not only is the owner of the animal absolved from liability, but if the owner or occupant of the land injures or destroys such animal, he is liable for five times the amount of such injury.—R. C. §§ 1282-83. The third instruction requested by the appellant should consequently have been given, if the form of the action had been adapted to a recovery for a mere consequential injury.
¶3A contract by which the tenant of land lets it to another for cultivation on an agreement for a division of products, creates between them a tenancy in common in the products. Williams v. Nolens, 34 Ala. 167; Strother v. Butler, 17 Ala. 733. Unity of possession is of the very essence of a tenancy in common.—Thompson v. Mawhinney, 17 Ala. 362. In actions for injuries to the possession they should join, not sever.—Chit. Pl. Austin v. Hall, 13 Johns. 286. The injury is single, indivisible, and incapable of being split up, into as many separate actions, as there may be tenants. There are causes of action, in which they must, or may sever, and when they do sever, the recovery is graduated to the interest of the tenant suing.
¶4The judgment is reversed, and the cause remanded.