Roach v. Heffernan

THOMPSON, J. The defendant insists that he had no such possession of the demised premises as will sustain an action of ejectment. He took possession of the same under the plaintiff’s lease, and has ever since occupied them for the purposes for which they were leased. It is true that he has not taken slate from the quarry for some time, but he has been in possession of the premises and done work necessary for operating the quarry from time to time, like blasting rock and pumping water from the quarry. His derrick has remained upon the premises. The plaintiff frequently claimed to the defendant that he had forfeited his lease by failure to work the quarry, and asked him to give up the premises. The court below expressly finds that “the defendant on all these occasions has claimed that he has not forfeited his lease, and has declined to give up the quarry, . and has occasionally entered by his help and put in a blast, as already found, but has occupied only according to the lease.” It does not appear that the plaintiff has ever taken possession of the premises so as to exclude the defendant from exercising all the rights granted to him by the lease. The defendant did not disclaim when this suit was brought, but stood upon the rights which he insisted he had under the lease, until the trial by the court. The court below has found that he did not surrender the possession of the premises. It did not err in holding, on the facts found, that the action could be maintained. Chilson v. Buttolph, 12 Vt. 231; Spear v. Ralph, 14 Vt. 400; McDaniels v. Reed el al., 17 Vt. 674. The defendant now insists that the rule of damages adopted by the court below is purely speculative. The exceptions do not disclose that this point was raised below. It appears that the court found that the use of the demised premises, during the time they were unlawfully detained by the defendant, was worth one hundred dollars, and rendered judgment for that amount of damages. The general rule in [488] an action for mesne profits is that the plaintiff may recover the annual value of the land from the time of the accruing of his title. This is only another way of saying that he may recover what its use is worth, or the rent therefor. Lippett v. Kelley, 46 Vt. 516; Sedgw. Dam. (5th Ed.) 135, 125. This was the rule adopted by the court below. As the defendant makes no point in his brief as to the admission of certain evidence to which exception was taken, there is no occasion for us to consider the same. Judgment affirmed.