Curtiss v. Hoyt

EimswoRTH, J. The first count in the declaration is trespass for taking down, removing and converting a building, the property of the plaintiff. The second, is for taking and converting certain timber, boards and stones. The third, — 163 — is for an injury to the plaintiff’s reversionary interest in the said building, averring that it was leased to Henry Hands and Thomas Easton. Neither count speaks of any ¡and of the plaintiff, nor claims damages for entering upon land ; but the entire cause of action is an injury to a building, or the materials of a building. To this declaration the defendants plead and give notice, that they did the acts complained of, by the direction of one Esther St. John; who, they say, owned the land where the building stood, subject to a right of way in the public ; that it was an incumbrance on her land, which the plaintiff was requested to remove ; and as he neglected, the defendants did it for him, doing as little injury as possible. The notice further states, that the place was a highway, and that being obstructed by the building, the plaintiff was requested as aforesaid, but he neglected ; and the defendants removed the building for the plaintiff, or on his account. And further, that the highway over said place needed to be graded and made ; and the plaintiff being requested and neglecting, the defendants removed the building on his account, in order to grade and make the road. This notice, it will be perceived, is not framed to justify an injury to land or real estate, but to a building, and the materials of a building. It says, the building was an incumbrance on land, not a part of it, and therefore, was removed, on account of the plaintiff. The notice then, as well as the declaration, treats the buildin.ac as vested in the plaintiff; and hence, as no part of the realt)r, but personal estate entirely. We have been thus particular in stating what appears from the declaration and notice, the better to judge of the course taken in relation to the proof objected to. It will not be denied, that any evidence which conduces to prove that the plaintiff was the owner, or in possession of the building, at the time of the trespass, was admissible, under some, if not all, of the counts in the declaration; certainly, under the first and second ; for there, possession is enough ; and so under the third ; for possession is some evidence of title; and if otherwise, evidence which is admissible to one fact in issue, is not to be wholly rejected. Now, the motion states, that the plaintiff, in order to show, that he was the owner and in possession of said building, — 164 — offered in evidence a deed of it to the plaintiff, executed by ....... . 1 . J individuals, as a committee of a fire engine company, consisting of some twenty persons; the committee themselves being, and having been, from the beginning, members of the company : also, a vote of said company, signed by all its members by name, authorizing the sale and transfer of the building, by said committee : also, proof that said company erected said building with their own funds, though small sums were given by others : also, that up to the time of said sale, the company had exclusively occupied and used it, in part for an engine house, and partly for their library : also, that all the members of the company, at the time of the sale, delivered, each one, his key of the building, to the plaintiff: also, that all prior members had, on leaving said company, left to their successors said building, and made thereafter no claim to the same ; and that the avails of the sale to the plaintiff, were appropriated, by the company, to to procure for themselves another engine house ; and that no other persons whatever had objected to said sale, or made claim to the avails thereof. Now, we would ask, if this evidence does not conduce to prove any fact in issue ? Has it no bearing upon the questions of possession and title ? Is it so, that the giving up of possession, by those who erect a building, amounts to no proof at all ? And is not the instrument of sale of some importance? Will any professional man say, that such testimony can be wholly withheld from the jury? We think not. The first objection is. that it does not tend to prove that the company, or its members, had any property in the building to convey. We think it does. Next, that the company, not being incorporated, could not hold property. But they could, as individuals ; and this the plaintiff claimed to be the fact. Next, that they could not act by vote — could not appoint a committee by vote, to sell or convey. The plaintiff claimed, that each member gave his individual consent to what was done. Next, that said vote imparted no authority to the committee : and that having no power under seal, they could not sell and bonvey. If the building was personal estate, it is agreed, this objection falls to the ground. And sucn we consider it to be. We would here observe, that had n Deen claimed to be a part of the freehold, the fact — 165 — might depend on circumstances; as under what agreement as to removal, it was put upon another’s land ; or whether it - stood on blocks, or otherwise ; so that the jury must have passed upon the question ; and hence the introduction of the vote and deed could not have been arrested in a preliminary stage of the trial, but the defendants must have raised the question on the charge of the judge. This was not done. We say, however, that as far as we can see, this was personal estate. The declaration throughout treats it as such. The defendants are sued for removing a building, or the materials of a building. The defendants’ notice corresponds with the declaration, treating it as exclusively personal, i, e. as a building of the plaintiff, standing on another’s land. It disclaims any interest in it, as in Mrs. St. John, because she owned the land, and professes, that it was removed, because it was an incumbrance on her land. It states that the plaintiff was requested to remove it, and as he did not, the defendants did it, for him, or on his account. The motion likewise states, that on the trial, the plaintiff did not claim the land, nor pretend to have any interest in it. Both parties having thus treated the building as personal property, this conduct may well conclude them, on this point, on the trial ; and the defendants having told the plaintiff what they should claim, he had a right to shape and introduce his evidence accordingly. We are aware, that the general principle of law is, that a building permanently fixed in the freehold becomes a part of it — that prima facie a house is real estate, belonging to the owner of the land on which it stands. But it may be personal estate, and, in our judgment is so, where it is a conceded or established fact, that it was erected by the builder, with his own money, and for his own exclusive use, as disconnected from the use of the land, and with the understanding of the owner of the land and the builder, that it was thus erected, and is removable at the pleasure of either ; and this, whether it was on rollers, &c., or not. We know of no case opposed to this view of the law. If a man sows upon his own land, the crop is parcel of the land ; if he sows upon his neighbour’s land, with the agreement that the crop is to be his and removable by him, it is not parcel of the land, but personal estate. The cases are parallel. So buildings, crops — 166 — and earth itself, sold to be separated from the land, are not within the statute of frauds ; for, by reason of the understanding and agreement of the parties, they have lost their character, as parcel of the realty. In what manner and under what circumstances this building was erected, does not appear from the motion; nor could these be assumed, in the progress of the evidence, so as to exclude proof from the jury. From the course taken, we are led to suppose, that the partieswell knew the circumstances to be such, as that the building was not real estate. However, the objection to the deed is technical at best, in no way affecting the merits of the case, and leaving other parts of the case unimpaired. The deed was good to convey, at least, the title of those who signed it, and of all who, by signing the authority, authorized its execution. These views as to the character of a building on another’s land, are countenanced by numerous cases. Baldwin v. Breed & ux. 16 Conn. R. 60., though the main question there was unlike this. Prince v. Case, 10 Conn. R. 379., where a dwelling-house was built, by permission, on another man’s land. Parker v. Redfield, 10 Conn. R. 490., where the lessor had agreed with the lessee, that he might erect buildings on the land, and at the end of the term remove them. Benedict v. Benedict, 5 Day, 464. Wells v. Banister, 4 Mass. 514. Marcy v. Darling, 8 Pick. 283. Ashmun v. Williams, 8 Pick. 402. 404. Curry v. Commonwealth Insurance Company, 10 Pick. 540. Doty v. Gorham & al. 5 Pick. 488. 6 N. Hamp. 10. 1 Fair. 433. Besides, it appears to us, proof of title is not essential in order to sustain the verdict, and that a new trial will be of no advantage to the defendants; especially, as the third count is for the same cause of action as the first, and so alleged to be. We do not feel the force of the further objection, that the committee could not sell the building to raise funds to procure another, for the same purpose; especially, with the consent of each member of the company. We now come to a question of a different character. It is said, the court should have charged the jury, that if the deed was not signed by each person, who was, at the time, or had been, a member of the company, the plaintiff could not recover the whole damages, even though he was in possession alone, against a wrong-doer. But why not ? Who could sue for an injury to possession, but the sole and exclusive — 167 — possessor? Were the plaintiff holding possession with others, there would be force in the objection, so far as the deed is _ essential to a recovery. But he did not hold with others, but alone. He purchased alone; he used and rented the property alone; and there was not the least evidence, claim or pretence, that any body was connected with the plaintiff. Who was it that was in possession, or an owner, with him? Was it those who had left the company ? We have no doubt, if personal property belongs to the members of a voluntary unincorporated association, especially for public, and not private, purposes, if a member abandons the association, he thereby abandons his interest in such property : it is equivalent to a renunciation of his right, and those who remain and succeed are entitled to such right. It no where appears, that there were any other members of the company, than such as signed the authority. The defendants did not so claim. They only required the court to charge, on this point, hypothetically, which it was not bound to do. Besides, the mere fact, that the deed was not signed by all who were, or had been, members, can be of no decisive importance ; the title and possession might be complete, without that exact fact; further proof might have been introduced on the trial. Again, it is said, the plaintiff could not be in possession, because of the leases to Hands and Easton. If this objection was well founded, we see not why the plaintiff could not recover on the third count; but we do not think the objection is well founded. The owner of a building can hardly be said to be out of possession, because he has leased the rooms, as such, to divers individuals. We think he still remains in the general possession of the building, and can well sue, especially if it be destroyed, though these rooms be the chief parts of the building. Can we say, as matter of law, that an owner of a block of several stories in height, is not in possession, because its various rooms and chambers are leased to merchants and lawyers ; that a hotel-keeper is not, because his rooms are hired for a day or a week; or the corporation of a college is not, because the rooms of the college building are rented to the students ? May not these owners enter upon their respective premises, and repair or add to the buildings, provided no injury is done to the occu — 168 — pants 1 It roust be kept in mind, there is a difference be- - tween renting an entire building, and the rooms of the building specifically. In the one case, a destruction of the building, as by fire, does not put an end to the lease, nor the payment of rent; in the other, it does produce that effect. If it were not so, insuperable difficulties would arise. Suppose there were tenants in rooms successively over each other ; if the building is destroyed, which of them is to enjoy the land where it stood ? Or can any one of them forbid the landlord to rebuild ? Can the occupant of a cellar under a burnt building, prevent the lessor from rebuilding at all, or only at a greatly enhanced price ? This distinction has been recognized, in Stockwell v. Hunter, 11 Metc. 448., and Kerr v. The Merchants’ Exchange Company, 3 Edw. Ch. R. 35 5. In the first of these cases, it was held, that a demise of the basement room of a building several stories in height, without any stipulation, by lessor or lessee, for rebuilding, in case of fire or other casualty, gives the lessee no interest in the land, though he pays all the rent in advance ; and if the whole building is destroyed by fire, his interest in the room is terminated. In the second, that where a tenant hires rooms only, his interest ceases with the destruction of the building ; therefore, where the complainants hired certain apartments, designated by numbers, in the Merchants' Exchange in New-York, which was destroyed by the great fire, during the demise ; it was held, they could not claim new rooms (on the old site,) in the new Exchange. Were it necessary, we could go further in this case. A tenancy at will of one of the two rooms in the building, makes a case more favorable for the plaintiff, than leases on time. And whether the building be real or personal, notwithstanding such a right by a tenant at will, we are persuaded that an action of trespass well lies, by the owner, for the destruction of the building : this is not a mere disturbance of the possession. Com. Dig. tit. Trespass, B. 2. Co. Litt. 57. a. note 378. by Harg. 2 Rol. Abr. 551. tit. Trespass, n. 3. 4. Starr v. Jackson, 11 Mass. 519. Lienow v. Ritchie, 8 Pick. 235. Hingham v. Sprague, 15 Pick. 102. So, too, it might be said, that the building and materials reverted to fce lessor, after the building was moved from the place and beb^me uninhabitable, and was abandoned by the tenants. \ — 169 — Again, it is said the charge of the court is wrong, as to a highway down Mullen Hill, so called, to the turnpike. To-prove the existence of a highway where the building stood, the defendants read a vote of the town of Norwalk, passed in 1804, forty-two years before the trespass was committed; expressing that Eliphalet Lockwood and five others, [naming them,] all of whom are dead, so far as appears, ‘‘ have liberty to make a road from, <&c., over the public land, provided they give a deed to the town of their own lands two rods wide.” The deed was given accordingly, in due season. The claim assumes, that the building stood in the supposed highway over the common land. Now, it was not claimed by the defendants, that the vote and deed alone created a highway over this land ; but that said highway was soon after laid out and made, and continued to be used thereafter; and that all this established a highway. This the plaintiff denied. He insisted, that nothing of importance towards the execution of the vote, over the public land, had been done; and if not, there was here no highway. The question of fact was properly submitted to the jury. They found that nothing material had been done, and so there was no highway at this place. This is correct. We construe the vote as a mere license ; and that it must have been executed, and the road made in a reasonable time and manner, for public travel, or it ceased to have any efficacy. If personal estate must be taken possession of, in six years, and real estate, in fifteen, to save the title, how much more is a license, dormant forty-two years, extinguished and gone ? As the persons who had the liberty, did nothing for the benefit of the public, on the public land, but left it “ substantially in its natural state, impassable and dangerous,” the consideration of the licence failed. And it could not, with propriety, after the lapse of forty-two years and the change of circumstances, be assumed that the town of Norwalk would renew its ancient licence. The vote and deed, and slight acts of St. John, on the public land, cannot, as has been urged upon us, constitute a dedication of this common or public land, for a highway. This is not the language or spirit of the vote. It is “ they shall have liberty to make a road,” &c. And what is a dedication, without an acceptance by the public? — an acceptance usually, if not always, proved, by public use and enjoyment. Here, — 170 — there has been no general use or enjoyment; but, on the contrary, the place has remained an impassable and precipitous bank, with trifling exceptions. Nothing remains but the question of damages. The rule has so often been adjudged by this court, in actions of this character, in accordance with the charge of the judge, that no comments are called for. Edwards v. Beach, 3 Day, 447. Churchill v. Watson, 5 Day, 130. Davenport v. Russell, 5 Day, 145. Denison v. Hyde, 6 Conn. R. 508. Treat v. Barber & al. 7 Conn. R. 274. Merrills v. The Tariff Manufacturing Company, 10 Conn. R. 384. Huntley v. Bacon, 15 Conn. R. 267. In this opinion Church, Ch. J., and Storks and Holman, Js., fully concurred.