Nash v. Sullivan

Mitchell, J. Upon the facts found by the court there can be no doubt but that the defendant was not a mere casual trespasser, but a disseizor, in the actual, exclusive, adverse possession of these premises from the time plaintiff’s title accrued, in October, 1879, until he was ejected by plaintiff, in June, 1882. The plaintiff now brings this •suit to recover the value of the grain which defendant sowed, cultivated, and harvested on the premises during the years 1880 and 1881, with his own labor and at his own expense, and removed from the premises before his eviction. Plaintiff has totally mistaken his rights. His remedy is what was formerly called an action for “mesne profits.” Mesne profits are the profits or other pecuniary benefits which one who dispossesses the true owner receives between disseizin and the restoration of possession. When ejectment proceedings were fictitious and the plaintiff merely nominal, the damages recoverable in an action of ejectment were merely nominal, and the plaintiff was compelled to resort to a subsequent action to recover the mesne profits. Now, by statute, this claim may be treated as a part of the original cause of action, and recovered in the ejectment suit as damages for withholding the possession of the premises. The general principle on which these damages are allowed is that the plaintiff is entitled to recover .all damages fairly resulting from his having been wrongfully kept out of possession. Compensation is the measure of damages. Hence, on principle and according to the weight of authority, the amount of recovery for mesne profits is the annual value of the premises wrongfully withheld from the time plaintiff’s title accrued. Whatever question there might formerly have been about this, there can be none now under our statute, which declares that “damages for withholding the property recovered shall not exceed the fair value of ■the property, exclusive of the use of the improvements made by defendant, for a period not exceeding six years.” Gen. St. 1878, c. 75, § 13. This provision is general in its terms, and it is immaterial whether the defendant was or was not holding under color of title in good faith. If he was, a further provision allows him to offset his improvements against plaintiff’s claim for damages. It can make no [191] difference in the measure of damages whether the plaintiff seeks to recover them in the action for the recovery of the possession of the property, or elects to bring a subsequent action for them. In this case there was no allegation in the complaint, nor evidence offered at the trial, as to what the value of the use of these premises’ was. Therefore, plaintiff was not entitled to recover; at least, not more than nominal damages, which was what the court below allowed him. Order affirmed.