Little v. Palister

Mellen C. J. Notwithstanding the wide range which the counsel have taken in this cause, and the elaborate investigation which it has undergone, we are satisfied from a more particular examination of the plaintiff’s declaration, and the facts on which the Judge’s instructions to the" jury, were founded, that the question reserved for our decision is narrower and more simple, than has been imagined, and capable of an easy solution. The allegation in the writ is, that the defendant, with force and arms, broke and entered the plaintiff’s -close, and carried [15] away fifty cords of wood, — broke down the plaintiff’s fence, subverted and broke down the plaintiff’s grass, — tore in pieces the buildings, and expelled from the dwelling house one Hanna-ford, a tenant of the plaintiff. By the report it appears that no part of the alleged trespass was proved,’except the breaking and entering the close, or in other words going into it, and tearing or throwing down some parts of the fence on the land, which had been built by Me Kenney, during the tenancy at will, by his own labour, at his own expense, and for his own use. There was no proof that, he had destroyed, or carried away, or appropriated, any part of it. The Judge instructed the jury, that on those facts the action was not maintainable. The counsel for the plaintiff, in support of his motion for a new trial, has relied on the decision in the case of Starr & al. v. Jackson 11 Mass. 519, as establishing the principle that an action of trespass quarc clausum fregit lies for the owner of land in the possession of his tenant at will, where the injury affects the permanent value of the property ; and that that decision is applicable to the case before us. The counsel for the defendant denies that the tenancy of Me Kenney was a tenancy at will, and contends that it was a tenancy fr.om year to year, and so not within the principle of Starr & al. v. Jackson ; and insists further that that case ought not to be received and respected by this Court as an authority. With respect to the tenancy, we are of opinion it must be considered as a tenancy at will. By the express terms of our statute, and that of Massachusetts, of which ours is a transcript, all parol leases are leases at will only. This same question has also been decided in Massachusetts. With respect to the case of Starr & al. v. Jackson, we apprehend that the facts before us do not require that we should call in question the correctness of the principle laid down by the Court in that case ; nor is it necessary for us to intimate any opinion in relation to the principal point of the decision. The present case is different from that as it regards the nature of the trespass committed, and we may safely rely on some of the undoubted principles of that case to shew that we ought to arrive at a different conclusion in the decision of this. The question there was whether the action should not [16] have^een case and not trespass, as the wrong committed was injurious to the permanent estate, such as destroying a building, ploughing and subverting the soil, &c. during the possession of the tenant at will. The Chief Justice, in pronouncing the opinion of the Court, says “ There seems to be no doubt but that a tenant “ at will, and his landlord, may both maintain actions for injuries “ done to the soil, or to buildings upon it. They are both injured ; “ but in different degrees ; — the tenant in the interruption to his “ estate, and the diminution ofhis profits; — and the landlord in the “ more permanent injury to his property. If a house, occupied “ by a tenant at will, or for years, should be demolished ; or if “ the fruit or forest trees of a farm so occupied should be cut “ down, it is obvious that the tenant ought not to recover in dam- “ ages the value of the thing destroyed ; audit is equally obvious “ that the landlord would be entitled upon common principles of “justice to recover indemnification for the injury done,to his “ freehold. And there would be no difficulty in separating the “ damages, by the verdict óf a jury, according to the respective “ interests of the several parties.” By keeping the above distinction in view, and the facts proved against the defendant, it will be seen that the wrong he committed was not a violation of' any of the rights of the plaintiff, or injury to his freehold, but of •the rights of the tenant at will; and was an injury to Mm, impairing his profits, &c. — an injury for which he only has a right to demand damages, — not the plaintiff. His want of actual possession need not then be resorted to as a ground of defence. Hence we see the case of Starr & al. v. Jackson does not apply to the point for which it was cited. McKenney, a tenant at will, had a right to erect such fences, and in such places on the land, as suited his convenience ; and of course he had a right to take them down, aud remove them from one place to another on the land, according to his'own pleasure, and without consulting his landlord. It does not appear, as we have before stated, that the defendant destroyed or carried away or in any manner appropriated the fence to his •own use. What he did was an injury to McKenney the lessee, for which he might recover damages ; but it was Mo kind of prejudice to the plaintiff. It was the lessee’s fence which was thrown down. This wrong might and did injure his rights, and [17] impair liis profits, by exposing bis fields ; but why should the plaintiff complain, or have reason to, any more than if the lessee himself had thrown down the fences ; which he certainly might have lawfully done as often as his judgment or caprice should dictate ? The nominal, technical trespass, committed by entering the close, was no injury to the plaintiff; the soil was not subverted or damaged ; and though the grass might have been trodden down, and injured, this grass was the property, and part of the profits, of the lessee ; he only was injured ; he only can claim damages for this particle of wrong. It is not necessary to decide the cause therefore on the broad ground on which it was placed by the arguments of the counsel ; nor whether a tenant for years or at will has a right to take down, carry away, or dispose of, at the end of his term, any fences which he mny have erected on the premises during the continuance of his lease. As the facts do not require a decision of either of these questions we give no opinion respecting them. For the reasons above assigned we are of opinion that the motion for a new trial must be over-ruled. Judgment on the Verdict.