Cutting v. Cox

The opinion of the court was delivered by Redfield, J: As between the plaintiff and Goochy, the question, which should bring the action, may be in some sense determined by inquiring who was injured by the trespass complained of. If this were the ordinary case of carrying on a farm at the halves, it has not been considered thqt the owner of the land is so far divested of ’the possession, that he may not maintain trespass, in his own name, for any injury to the inheritance, — as digging stone, or cutting timber. As to the growing crops, in which the parties have a joint interest, the parties are treated as tenants in common, or, more properly, joint tenants, perhaps, and they should join in the action. •If they do not join, the non-joinder can only be pleaded in abatement. If not so pleaded, it will only affect the question of damages. These principles being merely elementary, it is hardly necessary to >quote authorities. This might be the present case, if the land in dispute formed a portion of the premises in the occupancy of Goochy at the time of the alleged trespass. But that does not seem to be the fact. Goochy disclaimed all possession in his own right, and said he would have nothing to do with this land. It is conceded, that the land belonged to the plaintiff. It seems clear, if Goochy was not in possession and would not consent to take possession, in his own right, that no action could be maintained in his name. If not, then the [521] plaintiff must be permitted to sue in his own name, or he cannot sue at all. The only remaining question is, whether the plaintiff has elected the proper form of action. It appeared in the case, that the defendant took possession of the land under a mistaken division, made between him and Goochy, which Goochy had no right to make on the part of the plaintiff. But the defendant had taken actual possession in such a manner as to create a disseisin, at the election of the plaintiff; and, after the true line was ascertained, the defendant persisted in maintaining his possession, — which would clearly justify the plaintiff in treating it as a disseisin and bringing ejectment. But in all cases of disseisin the plaintiff may also maintain trespass, if the entry were made while he was himself in possession ; but in such case the damages will be restricted to the first entry, unless the plaintiff make a re-entry upon the land before action brought. In such case he will recover all his intervening damages, the same as if he had brought ejectment and recovered the seisin. If the plaintiff can re-enter upon the land, it is the same, as to recovering intervening damages, as if, at common law, he had first reseised' himself by a recovery in ejectment. And if the defendant still maintains his possession, it makes no difference; ■ he is still considered a trespasser upon the lawful owner of the land, so long as he shall continue to re-invest himself with the possession of the land by re-entry. After the re-entry the law considers the freehold and possession to have all along continued in him ; and the disseisin is cured by the re-entry, until some fresh act of disseisin, — which is itself a trespass, in the first instance, as every disseisin includes a trespass; and if continued, there must again be a re-entry. This is fully sustained by the case of Butcher v. Butcher, 14 E. C. L. 59. The wrong doer cannot treat the lawful owner as a trespasser ; and if not, then the continuance of the defendant’s possession was itself a trespass, as is said in the case of Butcher v. Butcher. In the present case it is very obvious there was a sufficient re-entry by the plaintiff; and from that time the lawful possession would be in him, until the defendant did some act of disseisin, — which seems to have been the cutting of the grass complained of, which was a trespass for which the plaintiff might well recover. Judgment affirmed.