Tracy v. Butters

Campbell, C. J. Butters sued for trespass committed by the entry and holding at two separate periods by Tracy of a lumbering shanty. The chief defense is that there was no such title shown in Butters as to authorize the recovery. The objections, as it seems to us, were rather of fact than of law. There was testimony tending to show that Tracy & Butters had occupied the shanty as their own, and that on a settlement and closing of their partnership affairs, Tracy sold out his interest in it. This being so, and Butters swearing to a prima facie case, the question of title to the land became immaterial, and we cannot find as matter of law there was no possessory right shown which Tracy infringed as between these parties; whatever may have been the actual facts there was enough to go to the jury. The charges of the court on the trial were all strong enough in favor of defendant below if there was any evidence at all on the main issue. The charge principally complained of, refusing to instruct the jury that there could be no damages for the continued possession, but only for the act of ouster, was correct. There is no foundation for such a doctrine as is claimed by plaintiff in error. The damages include properly all the1 injury caused in 1'aw by the retention of possession against right. And we think, inasmuch as the sole benefit of this possession was from its proximity to lumbering operations, the increase of expense necessarily caused to the plaintiff by the exclusion, came within the rule of Allison v. Chandler, 11 Mich., 542. The record does not show any attempt to get damages to the freehold. We ’think there was no error, and that judgment, should be affirmed with costs. The other Justices concurred.