Duclos v. Kelly

Smith, P. J.: The plaintiff might have lawfully joined in his complaint a cause of action for trespass and an equitable cause of action for injunction to prevent further trespass. Where the damage is substantial and judgment therefor is demanded in the complaint, it cannot be said that damage alleged is incidental only to the equity action. It is asserted by the trial judge, in his opinion, that the cause of. action for trespass was .Waived and not insisted upon in the proceedings upon the trial. The difficulty with this position lies in the fact that such a waiver does not appear in the judgment roll, and if injunctive relief be denied a judgment of no cause of action, in pursuance of such an assumed waiver, has the effect of justifying the trespass confessedly committed. "Upon this cause of action we . think the plaintiff should have judgment for six cents damages. The admission in evidence upon the part of the defendant of the contract of August tenth over the plaintiff’s objection that it had not been pleaded was probably error. In Van Buskirk v. Irving (7 Cow. 35) the head note in part reads: The “ matter of justification or excuse must be pleaded, in trespass quare clausum vel domum fregit." (See, also, Root v. Chandler, 10 Wend. 110 ; Haight v. Badgeley, 15 Barb. 499 ; Beaty v. Swarthout, 32 id. 293.) In 12 Abbott’s Cyclopedic Digest (p. 902) it is stated: “ Justification by virtue of authority or easement must be pleaded by defendant.” We are not satisfied, however, that the reception of this evidence, though erroneous, has harmed the plaintiff. The contract itself contains a latent ambiguity. Whether it referred to the Mira Boardman lot, which the plaintiff held under a restricted contract, depended upon the understanding between the parties at the time the contract was made. The jury has found that the parties did not intend, in the making of the contract of August [332] tenth, to include the Mira ■ Boardman ,lot. That contract, therefore, is no defense to the plaintiff’s action. Moreover, the contract tends to strengthen the plaintiff’s cause of complaint. The learned trial judge has denied any injunctive relief .upon the ground that no threat has been shown to cut further timber upon this lot. I can hardly conceive how a stronger threat could have been made than is implied in the actual cutting of timber under a claimed' right so to do. In the absence of a right so to cut said timber, such facts would seem not only to authorize but to morally require the court to grant its injunctive relief, and, in our judgment, the learned trial judge should have granted to the plaintiff the injunction asked for. Upon the facts found and the undisputed evidence, plaintiff should have upon this appeal the injunction asked for. The judgment should, therefore, be modified so as to enjoin defendant from trespassing upon the said Mira Boardman lot and from cutting timber therefrom, with the costs of the action to the plaintiff. As thus modified the judgment should be affirmed with costs to plaintiff. All concurred. Judgment modified to enjoin defendant from trespassing upon the Mira Boardman lot and from cutting timber therefrom, with the costs of the action to plaintiff, and as thus modified affirmed, with costs to plaintiff. o