Orris v. Kempton

Hooker, J. Plaintiff brought trespass quare elaitsum [230] in justice’s court. The declaration was in writing, and charged that the defendant,— “With force and arms, the lands and premises of the said plaintiff, situated,” etc., “and known as the northwest quarter of the north-east quarter of section eleven,” etc., “broke and entered,” etc. The defendant pleaded the general issue. To prove his cause of action, the plaintiff testified that he was the owner of the land described, and had been in actual possession of the same for 16 years; that there was a highway on the north boundary line of said premises; that the trespass consisted in defendant’s drawing a load of dirt, by direction of the highway commissioner, from within the limits of the public highway upon said premises. The defendant then asked the justice to certify the case to the circuit court upon the ground that title to land was brought in question by the plaintiff. Judgment for the plaintiff was reversed upon certiorari by the circuit court, and the plaintiff brings it to this Court by writ of error. It seems to be conceded that the dirt was taken from an existing public highway. Under the case of Ostrom v. Potter, 71 Mich. 44, plaintiff was not in the actual possession of the land where the trespass was committed, and could only recover by showing that he had title to the premises. Plaintiff’s answer to this is that the declaration averred title, but we think there is no force in this. It nowhere states that he was owner of the premises, in fee or otherwise. It might as well have followed the usual form, by stating that defendant broke and entered the close, as to have used the term Hands and premises,” while giving the description only tended to identify the place. The plaintiff, realizing the necessity, sought to prove title in himself, and, defendant not admitting it, the case should have been certified to the circuit court. The judgment of the circuit court must be affirmed. The other Justices concurred.