Mansfield v. Tenney

Sheldon, J. The previous action of trespass between these parties was submitted to the jury under instructions directing them to take as a measure of damages the diminished value of the plaintiff’s estate, and to return their verdict for that sum with interest up to the date of the trial. Although each party took some exceptions to the rulings made by the judge who presided at that trial, yet none of these were prosecuted. The jury returned a verdict for a substantial sum, judgment was entered thereon, with the acquiescence of both parties, and the amount of that judgment was paid in full by the defendants and received by the plaintiff. There has been no other or further trespass since then, except the maintenance of the same wall upon the plaintiff’s land, in the same condition in which it then was. It must be presumed, of course, that the verdict was rendered in accordance with the directions given by the presiding judge to the jury. Accordingly the plaintiff has received full compensation for all the injury done to her estate by the act of the defendants in going upon her land and erecting this permanent structure. Dickinson v. Boyle, 17 Pick. 78. Under those circumstances it is difficult to see how she can have any further compensation. Fowle v. New Haven & Northampton Co. 107 Mass. 352, and 112 Mass. 334. The plaintiff however contends that this is a nuisance created by the defendant, and that she is entitled as a matter of right to damages for its maintenance, regardless of what compensation she may have received in the past. But this argument overlooks the facts of the case. Not only has she received full compensation for the wrong done to her by the defendants, but she has recovered in a writ of entry judgment for the possession of the land upon which the trespass was committed, and this of course carried with it the right to the wall which stands upon that land. The defendants since then have not had the right to remove that portion of the wall. To do so would be to commit a new trespass by entering upon her land and tearing down a structure which belongs to her and with which the defendants have no right to meddle. Cavanagh v. Durgin, 156 Mass. 466, 470. This is not an erection upon the defendants’ own land, which they have a right to remove and ought to remove because it is a nuisance to the plaintiff. Aldworth v. Lynn, 153 Mass. 53, [315] 56. Wells v. New Haven Northampton Co. 151 Mass. 46,50. In Mears v. Dole, 135 Mass. 508, the plaintiff was allowed only such damages as he could not have recovered in his former action. We need not consider whether under the provisions of R. L. c. 179, §§ 12-16, and 42, the plaintiff should not have recovered her full damages in her writ of entry, or whether the effect of the judgment entered upon that writ was to bar either her present claim or that made in her former action of tort for trespass. Raymond v. Andrews, 6 Cush. 265. Stark v. Coffin, 105 Mass. 328, 332. The verdict for the defendants was rightly ordered. Exceptions overruled.