Haskin v. Record

Piérpotnt, J. The declaration in this case contains three counts ; in the first two the plaintiff declares upon a trespass “ quare clausum,” and in the third, on a trespass “ de bonis.” The court charged the jury that upon the facts as stated in the bill of exceptions, if found to be true, the plaintiff was entitled to recover on either of the counts. The defendant insists that the charge was erroneous. He concedes that upon the facts found, the plaintiff was entitled to recover on the third count, but denies that trespass qu. cl. can be maintained, and that as the verdict is general, a new trial for that reason must be awarded. In support of this position, it is claimed that the plaintiff and the defendant were the joint and common possessors of the premises on which the property in question was situated; that they were tenants in common of the possession', having a joint and equal right to enter upon each and every part of the premisés on which the timber was situated, and that being such tenants in [578] common, an action of trespass qu. cl. cannot be maintained by the plaintiff for the injury complained of. The general principle seems to be well settled, that one tenant in common cannot maintain trespass qu. cl. for an entry upon, or a mere injury to the common property; and if the relation exist-, ing between the plaintiff and the defendant at the time of the act complained of, was such as is contended for, the objection to the charge of the court would seem to be well taken. But we think these parties cannot be regarded in any sense as tenants in comman, or as having any joint interest or right in the realty or in the timber. The rights of each were entirely sepa-, rate and distinct from those of the other. The plaintiff having the right to all the timber upon the premises except the pine, with the right to enter and remove it, and having entered for the purpose of removing it, is to be regarded as in the possession of the premises for all purposes, and to the extent, necessary to enable him to accomplish it and no further. Beyond this he has no interest in the premises and no right to the possession, but to this extent his right and his possession are exclusive, both as to the defendant and the owner of the soil, and if either were to enter upon the premises, and do any act in violation of these rights^ the plaintiff would have his remedy by an action of trespass qu. cl. So, too, of the defendant, he is the owner of the pine timber with the right to enter and remove it. The case shows him to be in possession of the premises for the purpose of removing the pine at the same time that the plaintiff is in possession for the purpose of removing the other timber. Their possession is like their interest, not joint, but separate, and limited by the extent of their interest, and the possession of both does not constitute the entire possession, for except for the purpose of removing the timber the owner of the soil is to be regarded as in the possession, and for any injury to the freehold, not affecting the rights of the plaintiff or the defendant, in this suit, the owner of the soil could maintain the action of trespass qu. cl. In this case, therefore, when the defendant, being in possession for the purpose of removing the pine timber, goes further and takes the cedar timber belonging to the plaintiff', and for the [579] removal of which, he is in possession, as the exceptions show, such act of the defendant is not only a violation of the plaintiff’s right of property, but is a violation of his possession ; and this cannot be affected by the fact that the defendant has the right to go to all parts of the premises where the pine timber is to be found to remove it. As it is only to that extent that he is to be regarded as in possession, when he goes beyond this, as he must in all cases where he attempts to take the other timber, he becomes a trespasser on the possession of the plaintiff; he goes where he has no right to go, and where he has no possession, his possession being limited by his right. We think the acts of the defendant were such that the plaintiff was entitled to his action of trespass qu. cl. therefor, and that there was no error in the charge of the court. But if it was not so, it is not easy to see how the defendant could have sustained any injury thereby, it being conceded that the plaintiff, under the finding of the jury, was entitled to a verdict upon the third count, and as the plaintiff claimed to recover nothing but what he would have been entitled to recover under that count, it would seem that the verdict must have been the same if the charge had been in this respect as requested by the defendant, but under the view which we have already taken of the case, this consideration becomes unimportant. The judgment of the county court is affirmed.