Reed v. Price

Ewing, Judge, delivered the opinion of the court. The possession of the plaintiff being conceded, and the defendant claiming no title to the premises or license from the owner to enter, the question is whether evidence of want of title in the plaintiff was admissible. The law has been too long and too well settled to render it necessary to cite authorities in support of the position that possession is sufficient to maintain an action of trespass. In this action the defendant may dispute the plaintiffs’ posses-sory right, by showing that the title and possessory right are vested in himself or another, under whom he claims or whose authority he has. But if the plaintiff prove possession merely, that will suffice, if the defendant can not show a superior right in himself or another under whom he can justify. It is true the plaintiff must prove such a lawful possession as the defendant had no right to disturb, but any possession is a legal possession as against a wrongdoer. (Graham v. Peak, 1 East, 246; Lambert v. Strakin, Willes, 219; Cottoirs v. Cowper, 4 Taunt. 546 ; 3 Metc. 242; First Parish in Shrewsberry v. Smith, 14 Pick. 303.) In the case last cited the general principle and reasons upon which the doctrine rests is well stated by Chief Justice Shaw, in delivering the opinion of the court. He says: “ There are many cases were acts have been done intended to constitute a good and valid title, where grants have been made and titles transferred, but where, through negligence, ignorance or mistake —especially where corporations, public bodies and official agents are concerned — such titles can not be legally proved. Upon a close investigation a flaw in the title would be discovered. If a lawful owner, in whom the legal title remains, chooses to interfere and set up his legal claims, the law, in consistency with its own rules in regard to the transmission of title, may be compelled to admit his claim. But if such owner, upon considerations of propriety, equity and conscience, chooses to acquiesce and permit the party in possession to retain that possession notwithstanding any defect of — 447 — title, by what rule of law, of equity, or sound policy, can a mere stranger be allowed to interfere and by his own act violate the actual and peaceable possession of another, and thereby compel him to disclose a"title, in the validity or invalidity of which such stranger has no interest ?” But it is insisted, in the second place, that if the evidence was not admissible in defence, it should have been received in mitigation of damages. The instruction asked on this point and refused is, in substance, that the plaintiff, having proved no title but the mere possession, can recover only for the injury to the possession, if any, between the time of the commission of the trespass and the commencement of the action. It is not perceived upon what principle the evidence would be admissible for one of these purposes and incompetent for the other. Such an instruction, and the rule of damages it prescribes, would have been entirely consistent with the evidence which was excluded, but was clearly inadmissible in any other view of the question. If, therefore, the evidence was inadmissible and properly excluded, the instruction was erroneous. The error of the instruction consists in assuming the right of the plaintiff to have been a mere possessory one, and in excluding the idea of' title. If the plaintiff had been a mere'tenant, then the rule of damages laid down in the instruction would have been proper, because, as the interest was only a possessory one, the injury could not go beyond that. But such a rule is wholly inapplicable to this case. Because the plaintiff proved a mere possession, it did not follow that the damages should have 'been restricted to an injury to the possession. The question of title was not necessarily in issue; for possession was sufficient to maintain the action ; and the plaintiff’s possession having been admitted, and the question of title not having been put in issue by any form of defence that was admissible, the instruction was wrong in assuming that, because possession only was proved, there was no title in the plaintiff, and therefore damages could be given only for an injury to the possession. The plaintiff had not only the possession, — 448 — but prima facie title also; and. this presumption of title arising from possession not having been rebutted by the defendant, how could he say that he was liable to respond in damages for an injury to the possession merely ? The case, therefore, stands upon the same ground in respect to the measure of damages as any case where all the elements of a perfect title — namely, possession, l’ight of possession, and the right of property — concur in a party plaintiff suing in trespass. The instructions given laid down the proper rule with respect to damages. The judgment will bo affirmed. Judge Scott did not sit. Judge Napton dissents.