Ripka v. Sergeant

The opinion of the Court was delivered by Gibson, C. J. The argument for the defendant below assumes the very thing to be proved, that the owner of the freehold cannot have an action for an injury to it, which is not productive of immediate and visible damage. The decision in Pastorius v. Fisher settles the question otherwise where the owner of the freehold is in possession, and consequently establishes the point that an action may be maintained for such an injury by the tenant for years. Why then should it not be maintained also by the reversioner ? The tenant might not be willing to sue till the Statute of Limitations had run; the consequences of which would be, not only the loss of the reversioner’s action for the time past, but perhaps the [13] gain of a right at his expense by an adverse user for twenty years. It is an assumption of the question to say the statute would not begin to run against him till his right of action had accrued. Whether it would run against a reversioner on an adverse possession gained by a disseisor, so as to bar an ejectment, has not been decided. It was indeed intimated in Doe v. Danvers, (7 East 299), that it would not; but there was no such point in the case; and the doubt was not whether there would be an injury to the freehold, for every disseisin is such, but whether the reversioner had such a right of entry as would support a possessory action; for no one would doubt that he might revest the freehold during the term by a real action. Now there is no place for such a doubt here; for"if there is a present injury, it will3 clearly support an action on "the case, which, unlike an ejectment, requires no right of entry. A right to the possession will undoubtedly maintain it against a wrong-doer; but it follows not that a reversionary right has less effect. It is not disputed that the reversioner may maintain ah assize for a nuisance; and a nuisance is consequently an injury to the freehold. Formerly a tenant for years had no remedy for it at all, for the quod permittat and assize of nuisance lay "only for the owner of the freehold ; which shows that an injury to the property is done to him as well as the tenant in possession, even at this day. When the action on the case came to supersede these writs as more convenient and equally efficient in practice, it necessarily took nothing from the right of the reversioner, though it might give remedy to the tenant in possession for the part of *the injury which affected him personally. If, then, there is a present injury to the freehold, the action is maintainable. But the penning back of water in the channel of a stream is an injury to the freehold, though the banks be not overflowed. It is a species of disseisin for which an assize of nuisance lies. To avoid the consequence of this, the wrongdoer is compelled to fall back on the position from which his argument started, that an action on the case lies only for an actual and appreciable injury; but then he is driven upon the decision in Pastorius v. Fisher, that the law implies damage from flooding the ground of another, though it be in the least possible degree, and without actual prejudice. And if the principle protects an owner of the freehold in actual" possession, why shall it not protect an owner of the freehold in possession by his tenant 1 There is no authority against it; for Baxter v. Taylor (4 Barn, & Ad. 72) was the case of one or more separate trespasses under a claim of right, which did no damage to the freehold. Unlike the flooding of another’s land, the injury did not partake of the nature of a disseisin. Even if an adverse right might not be gained from the reversioner by an undisturbed user for twenty years, it would be unreasonable, after so great a lapse of time, to put him to proof of circumstances in order to show that the user [14] had originated in a parol license, known, it may be, only to witnesses since dead. If he had nothing to do with the user during the term, he would be incompetent to object to it or to sanction it. Other consequences, immediately prejudicial to him, might flow from the doctrine attempted. In contemplation of law, the rent issues out of the land; and whatever impairs the productiveness of it, decreases the landlord’s security; but compensation recovered by the tenant would be a poor substitute for the means of payment derived from an unimpaired enjoyment of the premises,. Besides, the market value of the reversion would be greatly lessened by an apparent injury which would permanently affect the property, or saddle the purchaser with a lawsuit. These are instances of immediate damage to the reversioner, and more might be given; but it is sufficient for the action that there has been any degree of damage to the freehold which the law regards-, for even an inappreciable, injury entitles the party to nominal damages. Judgment affirmed.