City of Providence v. Adams & Butterworth

Dttbeee, J. This is an action of trespass and ejectment brought to recover possession of a tract of land, situated in the city of Providence, particularly described in the declaration. To this action the defendants plead by way of estoppel the record of a former judgment recovered in an action of trespass quare clausum fregit, brought by A. H. Manchester and others against certain officers of the city of Providence, the defence of which action the said city took ilpon itself. The defendants in said former suit pleaded several pleas in bar, to wit: first a plea that “ the close aforesaid in which the trespass aforesaid is supposed to be committed, as set forth in the declaration aforesaid, is, and, at the time when the trespass was committed, was, the soil and freehold of the city of Providence,” &c.; and second, several pleas alleging title in said city by adverse possession. These pleas were duly traversed and thereupon issue was joined. Upon all the issues the jury found a verdict for the plaintiffs, and judgment was entered accordingly. And the defendants in the present suit aver that they are privy in estate with the plaintiffs in said former suit, having derived their title to the land sought to be recovered, from them; and they further aver that the close described in the declaration in the present suit is a portion of the same close described in the declaration in said former suit. To this plea of the defendants the plaintiff replies that said former suit was an action of trespass for breaking and entering the plaintiffs’ close in said action described, &c., and that the testimony therein produced showed that the alleged trespasses were committed in the northwesterly corner of said close, and that no' testimony was produced showing any trespass elsewhere; and the plaintiff avers that “the close described in this suit does not include that portion of the close in which the trespasses aforesaid were proved to have been committed in said action recited in the defendants’ plea.” To this replication the defendants demur specially, on the grounds that it contradicts the record of the former suit; that it is an attempt to retry an issue once decided; and that it tenders an immaterial issue. - • The description of the close in which the trespasses were alleged to have been committed in the action of trespass quare *188 clausum fregit, as given in the declaration in that action, is nowhere recited verbatim, either in the plea or in the replication filed in the present suit; but in the argument of the demurrer in the present suit it was announced as a fact that the close mentioned in the declaration in said former suit was therein particularly described by metes and bounds or by abuttals, and therefore in passing upon the question before us we feel at liberty to take it for granted that such was the fact. The defendants contend that it is apparent upon these pleadings that the plaintiff is seeking to recover possession of a tract of land the title to which was determined, by the judgment rendered in the former suit, to be in their grantors, and that, such being the case, the record of the said former judgment may be lawfully pleaded in bar, by way of estoppel, to the action. The plaintiff concedes that the record of said former judgment furnishes a good defence by way of estoppel, if the title of the land which the plaintiff is now seeking to recover was in issue in the former suit; but the plaintiff contends that it was not in issue; that though the close described in the former suit embraced, with other land, the land embraced in this suit, yet that the title of only so much of the land described was in issue as constituted the plac.e in which the trespasses complained of in the former suit were committed; that the locus in quo of said trespasses forms no part of the land now sought to be recovered; and that therefore the record of the judgment rendered in the former suit furnishes no defence by way of estoppel to the present suit. We may therefore assume that the plea of the defendants is a good plea in bar to the plaintiff’s action, if the title to the land now sought to be recovered was in issue in the former su.it, and direct our attention simply to the inquiry whether in contemplation of law the title to said land was in issue. The defendants contend that their grantors, the plaintiffs in the former suit, could not have recovered judgment in that suit if the defendant therein could have proved title to any part whatever of the close described, — whether such part was the place in which the trespasses were committed or any other place embraced within the description, — and in support of this view they refer to the law relating to the plea of liberum tenementum when used as the common bar, so called. The law relating to that *189 plea thus used, is this: If the plaintiff declares in trespass for breaking and entering his close in a certain vill or parish, without naming or otherwise describing the close, the defendant may plead that the close in which, &c., is his own freehold; and then, if the plaintiff traverses the plea without new assigning with more definite description, the defendant will be entitled to recover if he can prove title to any parcel of land within the same vill or parish. But the law on this point is confessedly peculiar, and two cases only have been cited in which it has been maintained or suggested by the court that, when a plaintiff declares in trespass for breaking and entering his close, describing the same with particularity, the defendant may plead liberum tenementum, and, if the plea be simply traversed, recover upon proof of title to any part of the close thus particularly described. The two cases to which we refer above are the cases of Hawke v. Bacon, 2 Taunt. 156, and Stevens v. Whistler, 11 East, 51, both decided in 1809. In Batohe v. Bacon the plaintiff declared in trespass for breaking and entering his close called Far End Close. The defendant pleaded that the close in which, &c., was parcel of a waste in which he had a right of common. The plaintiff replied that the close had been inclosed and enjoyed in severalty by him for twenty years and more. The defendant rejoined that the part of the close where the trespasses complained of were committed had been separated from the waste within twenty years. The plaintiff surrejoined that the said close called Far End Close, and in which, &c., had been separated for twenty years and more. The defendant demurred. The court observed that the defendant had omitted a fair opportunity which the plaintiff gave him to traverse an allegation which the plaintiff could not have supported but by proving that the whole of Far End Close had been inclosed above twenty years, for if the defendant had taken issue on the replication as it stood, and if any part of Far End Close had been inclosed less than twenty years, the issue must have been found for the defendant; it did not differ from the common case of pleading liberwm tenementum, where, if the defendant proves he has a single acre in the vill, the issue is with him, whatever quantity of land the plaintiff may have had there; and if the plaintiff had meant to dispute the particular spot, he should have newly *190 assigned. In Tapley v. Wainwright, 5 B. & Ad. 395, the authority of this ease is expressly disaffirmed. In Stevens v. Whistler, the plaintiff declared in trespass for breaking and entering his close called Shepherd’s Lane. At the trial it appeared that Shepherd’s Lane was an open parish highway, and that the plaintiff owned land on one side thereof. The trespasses proved were that the defendant had depastured his cattle all along the lane. Verdict being given for the plaintiff, the defendant moved to set it aside on the ground that the plaintiff was not justified in declaring for a trespass in the lane generally, as if he claimed an exclusive right to the whole. Per Curiam “ The plaintiff had an exclusive right to part of Shepherd,’s Lane; and if the defendant meant to drive him to confine the trespass complained of upon the face of the declaration to.that part of the lane which was his, he should have pleaded soil and freehold in another ; which Avould have obliged the parties to new assign.” The report of this case is very meagre, and does not even state the plea, though from the opinion of the court it is evident that liberum tenementum was not pleaded. The point submitted to the court was whether the verdict in favor of the plaintiff could stand, inasmuch as he was the owner of only a half of the close described, and, therefore, the remark as to what would have been 'the result, in case the defendant had pleaded soil and freehold in another, was not, strictly speaking, called for by the case before them. A review of the English cases, decided subsequently to the two cases above cited, will show the present state of the law in England upon the question now before us. In Cocker v. Crompton & others, 1 B. & C. 489, decided in 1823, the plaintiff declared in trespass for breaking and entering his close called the Fold-yard, in the parish of Prestwick-cum-Oldham, in the county of Lancaster. The defendants pleaded that said close in which, &c., is and then was the close, soil, and freehold of the defendant Crompton. The plaintiff proved possession of a close called the Fold-yard, and that a trespass had there been committed; but it appeared that the defendant, Crompton, also had a close called the Fold-yard, in the same parish ; and it was contended for the defendant that they were at liberty to apply the evidence to that close, and that therefore *191 the plaintiff must he nonsuited. The verdict, however, was entered for the plaintiff, and was sustained by the Court of King’s Bench, sitting in bank, the court being of the opinion that the close was designated with sufficient certainty to prevent the defendant from availing himself of the common bar. In Richards v. Peake, 2 B. & C. 918, decided in 1824, the plaintiff declared in trespass for breaking and entering two closes of the plaintiff. The defendant pleaded a right of common in said closes in which, &c. The plaintiff discontinued as to one of said closes, and replied that the other of said closes, naming the same, had been inclosed and enjoyed in severalty for thirty years and more. The defendant traversed the replication and thereupon issue was joined. The jury found that part of the close had been inclosed within thirty years, and that the alleged trespass was committed in that part only. Upon this finding it was held that the defendant was entitled to the verdict, the court being of the opinion that the words: “ The close in which, &c., in the declaration mentioned,” must be construed to mean the part of the close where the trespass complained of was committed. In Cook v. Jackson, 9 D. & R. 495, decided in 1827, the Court of King’s Bench again held, as it had previously held in Cocker v. Crompton, that where a plaintiff sues in trespass quare clausum fregit, describing the close by name, and the defendant pleads liberum tenementum, proof that both parties have a close of the same name will not prevent the plaintiff from recovering without a new assignment. In Bassett v. Mitchell Smith, 2 B. & Ad. 99, decided in 1831, the plaintiff declared in trespass for breaking his close, and set out the close by abuttals. The defendants justified, alleging that the said close in which, &c., was part of an allotment of six acres made by commissioners duly authorized for certain purposes, in execution of which they entered. The plaintiff denied that said close in which, &c., was part of the six acres supposed to be allotted, and thereupon issue was joined. It appeared that the close set out by abuttals was not all within the allotment, but that the part in which the trespass occurred was within it. Held, that the justification was made out. Taunton, J., said: “ It is clearly held in Richards v. Peake, 2 B. & C. 918, that ‘ the close in which,’ &c., does not mean the whole close referred *192 to in the declaration, but the place in which the trespass is proved to have happened, and the defendant may so apply it. Here trespasses were proved in one part of the close only, and the defendant established his right in that part.” In Tapley v. Wainwright, 5 B. & Ad. 395, decided in 1833, the plaintiff declared in trespass for breaking and entering two closes, to wit, a certain close of the plaintiff’s called the Croft, and a certain other close, &c. The defendant justified upon the ground that the said closes in which, &c., were parcel of a waste in which he had a prescriptive right of common. The plaintiff replied an inclosure and adverse possession of the waste for twenty years and more, by which the right of common had been lost. The defendant traversed the replication, and thereupon issue was joined. The trespasses were proved over the whole of the close, nine tenths of which had been inclosed for more than twenty years, but the residue for a less period. The-verdict was given for the plaintiff, and, on motion for a new trial before the Court of King’s Bench, the verdict was sustained, the damages being reduced so as to be a fair compensation for the trespasses on the part inclosed for twenty years. Denman, C. J., said: “ The words ‘ the said close in which,’ &c., have been settled by the cases of Richards v. Peake, 2 B. & C. 918, and Bassett v. Mitchell, 2 B. & Ad. 99, to mean only the particular place in which the trespasses complained of were committed. Therefore, it is' clear that, upon the issue in this case, the plaintiff need not have proved that more than the parts actually trespassed upon, which the defendant must be understood to have known when he pleaded to them, were inclosed for twenty years.” In Smith v. Royston, 8 M. & W. 381, decided in 1841, the plaintiff declared in trespass, for breaking and entering his close, called Buck Leap, and erecting a building thereon. The defendant pleaded that the close in which, &c., was and is his soil and freehold, and thereon issue was joined. It appeared at the trial that Buck Leap was a strip of land about twelve feet wide, lying outside the hedge of the plaintiff’s land, and not divided by any fence from defendant’s adjoining field. The plaintiff proved acts of ownership to the extent of about four feet from his hedge. The building, though erected by the defendant within the twelve feet, was not within the four feet, and defendant proved acts of *193 ownership on the part where the building was erected. The Lord Chief Baron told the jury that the defendant was entitled to a verdict if he proved title to that portion of Buck Leap in which the alleged trespass was committed, and the jury returned a verdict for the defendant. On motion for a new trial the court held that the defendant in such a case is entitled to a verdict if he establish a title to that part of the close on which the trespass was committed, and is not bound to prove title to the whole close. Alderson, B., in giving judgment for the Court of Exchequer, said: “ There seems to us to be no distinction in the cases where the declaration describes the close in which, &c., by metes and bounds, or by name only. In both cases it must be taken to mean a complaint that the defendant committed a trespass upon a piece of land in the lawful possession of the plaintiff, described in the one case as being part of a close having certain metes and bounds, and in the other case as part of a close named A. The metes and bounds in the one case and the name in the other serve only to define to the defendant what close it is for the trespassing on part of. which tbe plaintiff brings his suit. When therefore the defendant, following the declaration, asserts in his plea that the close in which, &c., is his soil and freehold, we think his plea means that the part of the close so described in the declaration, on which he admits he has done the acts complained of, was his soil and freehold. By this plea, therefore, he undertakes to prove two propositions: first, that some pai’t of the described close belongs to him; and secondly, that it is on this part of the close that all the acts complained of have been done. If he does this, he is entitled to the verdict; if not, the plaintiff must succeed.” We think these cases clearly show that in England it is settled law that where a plaintiff declares in trespass quare clausum fregil, naming or specifically describing the close, and the defendant justifies by plea of liberum tenementum, or of some right of common or other similar right, in the exercise of which he broke and entered the said close in which, &c., the plaintiff will be entitled to recover if he proves a trespass in any part of the close named or described, to which the defendant cannot prove the right or title pleaded, even though the defendant may prove a right or title in some other part thereof; and that the defendant will be entitled to recover, if he makes out his justifica *194 tion in respect to the part of the close named or described, upon which the trespass complained of was committed, even though he fails to make out his justification as to the residue of the close, and the title thereof is shown to be in the plaintiff. In other words, it is established by the current of English decisions, that in an action of trespass quare clausum fregit, where the pleading is as above stated, the title to the entire tract of land named or described is not necessarily put in issue, but only tbe title to that part in which the alleged trespasses were committed. And from this it follows that where in such a' case judgment is rendered, the record is proof of title in the party in whose favor it is rendered only to the extent of the place of the alleged trespasses, which, it is declared in Barrett v. Mitchell, 2 B. & Ad. 99, and Smith v. Royston, 8 M. & W. 381, may be proved by parol testimony. The case of Whitaker v. Jackson, 2 H. & C. 926, decided by the Court of Exchequer in 1864, has been cited by the defendants as a case in their favor. In that case the plaintiffs declared in trespass for breaking and entering their land, described by its abuttals, and cutting away part of a wall and cornice built thereon. The defendants in two pleas denied the title of the plaintiffs, and the plaintiffs in support of their title gave in evi- ■ dence a judgment in a former action of trespass for breaking and entering the land, described by abuttals, and building thereon a certain wall and cornice. The latter action was brought by the defendants against the devisor of the plaintiffs, who pleaded thereto the plea of liberum tenementum, upon which judgment was rendered in his favor. No question was made but that the wall and cornice mentioned in the second, was the same as that mentioned in the first suit, but the defendants offered to prove that the right to the land overhung by the cornice was not litigated in the former action, but the judge ruled that the defendants were estopped by the record and rejected the evidence, and this ruling was sustained by the court in banc. The question was not whether the record was conclusive as to the title to the extent of the close described, but simply whether it was conclusive to the extent of the trespass alleged, and the court held that, to the extent of the trespass alleged, the place of which was not in dispute, the record was conclusive. The case, though de *195 cided by tbe same court (not the same judges) which decided the case of Smith v. Royston, contains no intimation that it was deemed to be in conflict, in any degree, with the case of Smith v. Royston. We do not think the case can be regarded as an authority in support of the position taken by the defendant. In the United States the question now before us appears to have seldom arisen; but in New York, New Hampshire, and Massachusetts, the rule of law declared by the English decisions has been recognized as correct; and no American ease has been referred to in which any different doctrine has been promulgated. In New York, in a case of trespass quare clausum fregit, where the close is described by abuttals, and the plea is liberum tenementum, the court suggest that the defendant may prove title to any part of the close described, and apply the proof to that part and recover, unless the plaintiff shows a trespass in another part to which the defendant’s title does not extend. They say : “ The substance of the issue is to be proved. That substance is, whether the spot where the act was done belongs to one party or the other.” Rich v. Rich, 16 Wend. 663; King v. Dunn, 21 Wend. 253. In New Hampshire the court hold: “ The plaintiff in trespass quare elauwum fregit must show the abuttals of his close, because to maintain his action he must show a trespass done within the limits of the close described; White v. Moseley, 5 Pick, page 230; but having shown the abutments of the close, it is enough to prove a trespass in any part of the close to which he can show a title.” Peaslee v. Wadleigh, 5 N. H. 317; Wheeler v. Rowell, 7 N. H. 215; Knowles v. Dow, 20 N. H. 135; Palmer v. Tuttle, 39 N. H. 486. In Massachusetts the Supreme Judicial Court use the following language : “ The rules of pleading in a real action, in which the title to the whole of the demanded premises is put in issue, do not apply to an action of tort, in which the title to the close cannot be definitively settled, and in which judgment for the plaintiff merely determines that the defendant has trespassed upon some part of the close, leaving it to be ascertained by oral evidence where the trespass was actually proved to have been committed, in case the judgment should be relied on in a subsequent action. The plaintiff, when suing in trespass, must indeed *196 be confined to tbe limits of the close as set forth in the declaration, and there must be such a substantial correspondence between the description and the proof as to secure the defendant from being misled. But if the plaintiff proves his title to part only of the close described, and a trespass by the defendant upon that part, he may recover damages according to the nature and extent of the trespass proved.” Hall v. Mayo & others, 97 Mass. 416. Upon the authority of these cases, English and American, we feel constrained to decide the question raised by the demurrer in this case against the defendant, unless there be some peculiarity of pleading in this particular case, or some peculiarity of usage and practice in the state, which will warrant our coming, to a different decision. 1. Is there anything in the pleadings to distinguish the case at bar from the cases in which the rule has been applied ? The only peculiarity of the pleadings to which our attention has been called is the language of the plea in the action of trespass, alleging that “ the close aforesaid in which the trespass aforesaid is supposed to be committed, as set forth in the declaration afore said, is, and at the time when, &c., was the soil and freehold of the city.” It is claimed that this language clearly evinces an intention to put in issue the title, not simply of the place of the trespass, but of the entire tract of land described. The reports of the cases above referred to do not purport to give the pleas or replications verbatim, but speak of the analogous allegation therein as if the words were “the close in which,” &c., or “ the said close in which,” &c., or “the close in which, &c.,in the declaration mentioned.” This language, if less explicit in some respects than that here employed, is in our opinion of the same grammatical import, the purpose in either case being to identify the close mentioned in the plea or replication with that mentioned in the declaration. But the allegation, according to the authority of those cases, whether used in plea or replication, is divisible, and is sustained by proof of title in the place of the alleged trespass, the question of title being from the form and nature of the action material only in so far as it is involved in the question of the right of the plaintiff to recover for the trespass alleged to have been committed. We therefore think there is noth *197 ing in the pleadings to distinguish this case substantially from the cases in which the rule, as above stated, has been applied. 2. Is there any peculiarity of local usage or practice to exempt the case from the operation of the rule ? We have no doubt that the action of trespass quare clausum fregit has been sometimes resorted to for the purpose of trying disputed titles ; and where the trespasses complained of extend to the entire tract of land in controversy, or where the parties choose to consider the verdict as a practical settlement of the title, there can of course be no objection to such an employment of the action. We doubt not also that the opinion may have prevailed to some extent that the plea of liberum tenementum puts in issue the title of the entire close described in the declaration, and that consequently a judgment thereon settles the title to the same extent. But certainly, in the absence of any decision or clearly established judicial practice to countenance the opinion, there should be the most convincing evidence of its general prevalence, not only as an opinion, but also as a rule of action, before it can be held (if even then it can be held) to have superseded the law of the land. The information which we have upon this point does not, in our opinion, warrant the conclusion that there is any such peculiarity of local usage or practice in this state that it can be regarded as having superseded the rule declared or recognized in the great majority of the cases which we have above cited. We think The demurrer should be overruled, and the plaintiff’s replication sustained.