Beers v. St. John

Storrs, J. The principal point, which has been made before us, by the defendants, and on which a new trial is claim [328] ed, is, that the acts of Nathan Beers, under whom the plaintiff claimed, constituted waste; and that therefore, the said Nathan, and the plaintiff under him, acquired no title to the shop in question, erected by him partly on its site, and that the jury should have been so instructed. It not only does not appear on the motion, that any such point was made on the trial, but it is not necessarily or fairly presented by the facts, as they are claimed to have existed in the case. Indeed, on a fair construction of the motion, the case was there placed on entirely different grounds. The facts detailed in the motion as the foundation for the claims of the parties, are stated too loosely and imperfectly to enable this court to decide intelligently, whether in the removal of the remains of the old shop, the said Nathan was, or was not, guilty of what is termed waste; or indeed, to admit of the belief, that any such claim was made on the trial. In determining whether their removal constituted waste, it would, or might, be a material inquiry, to what extent the building was dilapidated. It might have gone to decay, to so great a degree, as to render it entirely valueless and unfit for use or reparation, or only so little that it might be restored by slight repairs. On this point, the case, and it may be added, the proof also, was entirely indefinite. The motion states only, that it had gone, wholly or partially, to decay. It might also be necessary that it should appear what the condition of the building was, when the said Nathan, as tenant, went into the occupation of the premises on which it stood. It may be conjectured, that it was then tenantable; but if a material inquiry, it was one to be submitted to the jury. The terms of the lease, under which the tenant held, might also be important. On these subjects the motion was silent, and no proof was adduced: neither does it appear, under what circumstances the old shop, or its remains, were removed; or that there was not evidence to show, that it was removed with the consent of the owner; in which case, it would not be claimed, that its removal constituted waste. And it is not stated in the motion, that the point was raised on the trial, that the property in the new shop was not vested in the said Nathan, by reason of waste, either in erecting it, or in removing the old one, or of the use of a portion of the old shop in the erection of the new. If, indeed, such a claim had been made, it is very difficult to see how the [329] court below could, on the facts stated in this motion, determine whether waste had been committed, by said Nathan. But it is sufficient to say, that as this question was not made, it cannot be considered by us here. This court has inflexibly adhered to the rule of 1826; (6 Conn. R. 327.) and has repeatedly decided under it, that no point shall be considered on a motion for a new trial, not made on the trial below. 7 Conn. R. 399. 8 Conn. R. 236. 10 Conn. R. 263. 499. 11 Conn. R. 388. 13 Conn. R. 361. It appears on the motion, that the first question between the parties on the trial, was, whether the plaintiff, claiming, by conveyance from the said Nathan, a title to the shop erected by the latter, was the owner of said shop, when he, the plaintiff, removed it from the premises of which the said Nathan was the lessee; and that was made to depend wholly on the inquiry, whether the use, by the said Nathan, of a portion of the materials of the old shop in the erection of the new shop, vested the title to the latter in the proprietor of the former. That was the circumstance, in connexion with the further claim that the new shop was erected as a substitute for the old one, on which the defendants relied to make out a title in Edwin St. John, under whom they justified, to the new shop. There does not appear to have been any claim, that the plaintiff’s grantor might not lawfully have removed an entirely new building erected by him on the leased premises, for the purposes of his trade; or that the plaintiff, his grantee, would not have such right. The defendants’ claim was, that the use of any considerable portion of the materials of the old shop in the construction of the new, vested the title to the new shop in the owner of the old one. The principle, of which no complaint is made, was stated to the jury, that a tenant, for years has a right to remove, during the continuance of the term, but not afterwards, a building erected by him on the leased premises, for the purpose of carrying on his trade. They were also instructed, that the use of a portion of the materials of the old shop on the premises, in the construction of the new one, by the tenant, would not in law vest the title of the latter in the owner of the former, if said new building was a different and distinct one from the old shop, and not the old one repaired or reconstructed. The title of the plaintiff to the new shop, thus [330] turned on the question whether it was substantially and essentially the same shop as the old one. There is no doubt, that in determining this question, it was important and proper for the jury to consider what proportion of the materials of the one entered into the composition of the other, the character of those materials, the particular use that was made of them, and the place they occupied and the purposes they answered, in the newly erected building. These circumstances would have a very important bearing on such an inquiry; but it is scarcely necessary to say, that there is no principle of law, by which, where the builder of a house or other thing, uses in part in its construction, even wrongfully, materials belonging to another person, the title to such house or other thing thereby necessarily vests in the owner of such materials. There may be cases where the owner of such materials would not lose his property in them; and it is not necessary to say, that there are none where, under the circumstances, he would not even acquire a title to the thing which they helped to compose: but it has not been claimed before us, that such circumstances existed in the present case. It is, however, unnecessary to pursue this subject, as no question is made as to the correctness of the principle contained in this part of the charge; and the only objection made to it, (and which has been disposed of,) is as to its applicability to the case. The remaining question respects the correctness of the charge as to the right of the defendants to remove that portion of the building in question, which stood on the premises of the plaintiff. There was no question on this part of the case, but that portion of the building belonged to the plaintiff. As to that part of it, which may have been left, after the expiration of the lease, on the land of the said Edwin St. John, the defendants claimed, that it thereby became his property; and this was conceded, by the plaintiff; nor was it disputed, that the said Edwin had a legal right to remove, or authorize the defendants to remove, such part so owned by him. The question was, whether the said Edwin, or the defendants by his authority, for the purpose of removing his part of said building, had a legal right to remove also that part of it, which belonged to the plaintiff; and the jury were instructed, that they had not. This part of the case was treated as if there [331] was but one building composed of the two several parts which belonged respectively to the plaintiff and said Edwin; whereas it would be more proper, and also place the subject in a clearer light, to consider them as two distinct buildings, one standing on the land of the plaintiff, and the other on that of said Edwin. They were fixtures and a part of the realty, and the title to them followed the land on which they stood, and of which in law they constituted a part, although connected together and adjoining, as is frequently the case with buildings in large cities. It requires no argument or authority to show, that the right of one person to remove his own property, draws after it no right to remove that of another, whether adjacent or not. It is claimed, that this part of the case should have been put to the jury on the question whether the defendants did unnecessary damage to the plaintiff’s building, in removing that of said Edwin. The question, however, was not, whether the defendants did, in a proper manner, that which they had a right to do; but whether they had any right whatever to do what they did: and it is clear, that no such right existed. A new trial, therefore, should not be advised. In this opinion the other Judges concurred. New trial not to be granted.