Darling v. Kelly

Endicott, J. The case finds that the close, described in the plaintiff’s declaration, was owned by Chilson, who let it to the plaintiff to be farmed at halves, Chilson to manure and plough it, the plaintiff to do all the other labor upon it. An officer with a writ against Jesse Darling entered upon the land while so in the occupation of the plaintiff and attached the crops as the property of Jesse Darling, and dug up and carried away a portion of the same. The defendant aided and assisted the officer in the work of taking and removing the crops. The defendant claimed that the lease of the close was to Jesse Darling and not to the plaintiff, but this claim is negatived by the finding of the jury. The request of the defendant to rule that the plaintiff could not maintain this action was properly refused, and the instructions to the jury were correct, — that if they found the close was let to the plaintiff, and that he was the owner of one half the crops when the defendant entered and took them away, the plaintiff was entitled to a verdict for the value of one half so taken, no damage being claimed for injury to the close. The defendant was a mere trespasser, without justification in the fact that he was aiding an officer. The original act of the officer was unlawful, and the stranger assisting him became liable to the party injured. Oystead v. Shed, 12 Mass. 505. The [31] plaintiff, being in legal occupation of the close at the time of the defendant’s entry, could maintain an action in the nature of trespass quare clausum against him as a mere trespasser. Barnstable v. Thacher, 3 Met. 239. Shrewsbury v. Smith, 14 Pick. 297. Merriam v. Willis, 10 Allen 118. It was argued by the defendant that there was a tenancy in common with Chilson, and that he was justified in what he did by the consent of Chilson. But there was evidence tending to show that the plaintiff was entitled to the exclusive possession of the land, Chilson having no right of possession against him, after the land was ploughed and manured. If the jury so found, Chilson could give no consent to the defendant’s entry. See Warner v. Abbey, 112 Mass. 355. Exceptions overruled.