Murray v. Fitchburg Railroad

Lord, J. In this case there must be a new trial. The proposition is an entirely plain one, that the owner of land cannot maintain an action of trespass for acts done by a disseisor during his disseisin without a re-entry. But it is equally clear that, if the owner is in possession of land, the act of disseisin by the disseisor is a trespass for which he has his action, though he may not recover for the mesne profits or intermediate damage during the time he is disseised until he shall by suit or otherwise have regained possession. Kennebeck Purchase v. Call, 1 Mass. 483, 486. Taylor v. Townsend, 8 Mass. 411. Allen v. Thayer, 17 Mass. 299. Bigelow v. Jones, 10 Pick. 161. Holmes v. Seely, 19 Wend. 507, 509. Monckton v. Pashley, 2 Ld. Raym. 974, 977. 3 Bl. Com. 210. In this case, the plaintiff and defendant each claims title to the fee, and the case finds that the defendant broke and entered the close while the plaintiff was in possession. If the defendant had' a title better than his, it may justify the entry; if the plaintiff’s was the superior title, the entry upon his possession was a trespass, for which he may recover in this action. The defendant contends that the plaintiff has not declared upon the act of disseisin, but upon the acts done after the defendant was in possession; and in support of this position relies on Bartlett v. Perkins, 13 Maine, 87. But that case differs widely from this. That was an action of trespass guare clausum, by a lessor out of possession, for cutting and carrying away grass. It is entirely clear that such action cannot be maintained by the lessor for a trespass upon the possession of the lessee; and the fact that the court refused to' allow an amendment changing the declaration into one charging a usurpation of the fee, because it would be a different cause of action, is unimportant, because in this case the cause of action is properly alleged in the declaration. The declaration alleges, and the evidence tended to prove, that the defendant violated the plaintiff’s possession when it entered and disseised him. The fact that he has charged, as aggravation of the tortious entry, acts which by the rules of law he is not permitted to prove, will [102] not prevent Ms recovery for that trespass, which is well laid in the declaration. See cases cited above. It seems hardly necessary to notice the point made by the defendant, that the declaration is not incorporated into the report, and that therefore the court cannot see that any, and, if any, what, cause of action is declared on. The report states that it is “ an action of trespass quare clausum,” and concludes, “ The case is reported for the consideration of the Supreme Judicial Court.” That is sufficient. New trial ordered.