Morris v. Hazel

Boyce, J., charging the jury: Gentlemen of the jury:—Isaiah Morris and Ella Morris, the plaintiffs, brought this action against Joseph M. Hazel, the [327] defendant, to recover damages for an alleged unlawful entry upon the lands which it is admitted the plaintiffs held under a lease from the defendant, dated the sixteenth day of September, A. D. 1907, which is in evidence before you. The plaintiffs claim that the defendant did, on the sixteenth day of May, A. D. 1908, unlawfully enter upon and commit an injury to their possession of said lands by cutting down some thirty-four or forty-four peach trees and by severely trimming some four or five hundred other peach trees, and that by reason thereof they sustained an actual loss in the destruction of the fruit then and there growing upon said trees. The defendant claims that the trees were diseased with both scale and yellows, and that the plaintiffs did not, when requested, trim said trees, and that he, the defendant, did not enter upon the said lands and premises until he had first told Isaiah Morris, one of the tenants, that he, the landlord, would enter upon the premises and trim the trees unless they, the defendants, themselves trimmed the trees. And he claims that Morris made no reply thereto—and that it was not until after he had so informed Morris that he did enter upon the lands and trim the trees in a reasonable and proper manner. The defendant has pleaded a custom, in part, in this language:—“And he, the said defendant, and all those whose estate he now hath and all persons adjoining said close, farm and tract of land in Kenton Hundred aforesaid, all those whose estate such persons now have and had at the several times etc. mentioned in said plaintiffs declaration, and from the time whereof the memory of man is not to the contrary, have the right, power and authority and have been accustomed to use and exercise the same, to enter in and go upon all the demised premises in the Hundred aforesaid and to trim all fruit trees thereon growing and being on the said lands and that such persons adjoining said lands as aforesaid ought to have the right to go upon the demised premises aforesaid and trim all fruit trees upon said premises growing and being as aforesaid.’’ Issue was joined-on the plea. The defendant has introduced testimony in support of the alleged custom [328] set up by the plea. And likewise the plaintiffs introduced testimony to the effect that no such custom prevailed. This is an action of trespass quare clausum fregit, which is an action for breaking the close of another and forcibly and unlawfully entering upon another’s land. This action is based upon an alleged injury to the possession of the plaintiffs as tenants of the defendant. It is competent for one in possession of lands under a demise, to bring an action of this kind against his landlord. If you find, under the evidence, that there was an unlawful entry by the defendant upon the lands of his tenants, the plaintiffs in this case would be entitled to recover nominal damages. In order for the plaintiffs to recover more than nominal damages— that is, in order for them to recover actual damages—it is necessary for them to show by the evidence that they have sustained some actual damage. If you find from the evidence that the defendant did not unlawfully enter upon the plaintiffs’ possessions but that he went thereupon by the permission, license, or tacit consent of the plaintiff Morris; then the defendant’s entry was not .unlawful, and in that event, your verdict should be for the defendant. Ü’ If, on the other hand, you find that the defendant did unlawfully—without the consent or acquiescence of the plaintiffs,—enter upon the lands, but without injury to the possession of the plaintiffs, then your verdict should be for the plaintiffs for nominal damages. If you find that the plaintiffs are entitled to nominal damages, by reason of an unlawful entry, then you should determine whether they are entitled to recover actual damages. If there was such a custom as alleged in the defendant’s special plea, and concerning which evidence has been introduced, both for and against,—then the plaintiffs would not be entitled to any damages,—provided, of course, that the defendant did only the customary trimming. Of course a landlord could not go upon the lands of his tenant and wilfully destroy his own property to the detriment of his tenant. If there was not any such custom, as relied upon by the defendant, then the question arises for your [329] consideration whether the trimming—which the defendant admits he did—was done by the consent or acquiescence of the plaintiffs. If it was, then the plaintiffs cannot recover. If the trimming was not done by their consent or acquiescence, then it is for you to determine what amount, if any, the plaintiffs have been injured by the trimming; whether it was an unusual and unnecessary trimming, or whether-it was such a trimming as that the tenants were not injured thereby. We have permitted testimony to be introduced showing how many peaches were picked on the farm during the year in question and what they sold for; and also testimony of an estimate of the fruit alleged to have been destroyed by the trimming. You should consider this testimony in connection with all the testimony in the case in your endeavor to estimate what actual damages, if any, the plaintiffs may have suffered by the trimming of the trees. We will say to you that in civil actions the preponderance of evidence controls. That is to say, you should determine the-questions involved in this case according to the greater weight o£ the evidence. You are the judges of the weight and value of the testimony, as well also of the credibility of the witnesses. And where there is conflict in the testimony—as there is in this case— it is your duty as sworn jurors to reconcile the conflict if you can. If you cannot, you should give credit to that part of the testimony which you deem to be most worthy of credit, and reject that part thereof which you deem to be unworthy of credit. Verdict for plaintiffs for $5.