Brown v. Bridges

| Iowa | Jan 28, 1870

Day, J.

— Upon the instructions given arise all the alleged errors. We will consider only those insisted upon in the argument.

i. adverse stauSISo?N: limitations. I. The court instructed the jury as follows: “ If the plaintiff had been in peaceable possession of the land up to the hedge, and cultivated and claimed it as his, and such claim of ownership has been 0pen and notorious and adverse to all the world for more than ten years, then he would have the same right to recover for a trespass upon it as if he had had a title direct from the government, and it wrould make no difference what or where the orignal corner was.” Appellant does not deny that a valid title may be acquired by prescription, nor does, he insist that, under ordinary circumstances, any thing more than what is specified in the instruction is necessary to the creation of such title. ,His position is, that, before the statute of limitations will run against the rights of parties with reference to division lines and partition fences, there must be a controversy followed by the statutory period of adverse possession. No authority has been cited, nor has any fallen under our notice sustaining this view. The case of Stuyvesant v. Dunham, 9 Johns. 61" court="N.Y. Sup. Ct." date_filed="1812-01-15" href="https://app.midpage.ai/document/stuyvesant-v-tompkins-5472970?utm_source=webapp" opinion_id="5472970">9 Johns. 61, is directly in point. In that case the land owned by the respective parties was separated by a crooked fence.

The defendant pointed out to plaintiff the extremes of this fence, and informed him that the true boundary between them was a straight line connecting these points. Thereupon the plaintiff employed a surveyor and removed the fence upon such straight line, thereby bringing within his own inclosure a strip of ground which for twenty-five years had been in possession of defendant and his grantors. The defendant threw down the fence and was sued therefor in trespass. It was held that his prescriptive title was complete. See, also, Burdick v. Heivly, 23 Iowa, 511" court="Iowa" date_filed="1867-12-21" href="https://app.midpage.ai/document/burdick-v-heivly-7093920?utm_source=webapp" opinion_id="7093920">23 Iowa, 511, and cases cited. In our opinion the instruction correctly reflected the law.

3. instruobe°considered together. II. It is claimed that the sixth and ninth instructions given at the request of the plaintiff are irreconcilably in conflict with the third, given at the request of the defendant. These instructions given for plaintiff are as follows:

6. “ The fact that the defendant agreed to keep the hedge between him and the plaintiff in repair would not justify the defendant in cutting down and throwing the hedge and rubbish upon the land of plaintiff; and in that case he would be a trespasser and liable for damages.”

9. “ Even if Bridges agreed to keep up the hedge between him and Brown, he was not authorized to throw the rubbish and cuttings on the land of Brown, and if he did so he would be a trespasser; and before he can be protected in doing so he must show that Brown either expressly or impliedly consented to his putting the same on the land.”

The instruction given' for defendant, and which is claimed to be in conflict with those above quoted, is as follows:

“ If you find from the evidence that one of the acts complained of was the cutting and turning of an osage orange hedge, so that some of the limbs and material thereof extended over the line between the plaintiff and defendant, yet, if, at the time of the cutting thereof, the said hedge was, by mutual consent and arrangement, treated as a partition force, and the duty of keeping up the same devolved upon the defendant, and the defendant cut the said hedge in good faith, simply to improve and strengthen the fence and make it useful, and did not incumber the land of plaintiff with the material more than was necessary in the proper performance of this labor, or permit the plantiff’s land to remain so incumbered and in a manner that was then satisfactory to both parties, and the plaintiff stood by and saw it done, and made no objection to the manner in which it was done, then, as to such act, you will find for defendant.”

It is often very difficult, and in many cases scarcely possible, to embody in one instruction all the exceptions and qualifications which limit a given proposition of law, in its application to the facts of the case under consideration. The instructions of a court must be considered together. Ruble v. McDonald, 18 Iowa, 497; Hamilton v. State Bank, 22 id. 311.

If, as a whole, they contain a correct exposition of the law, this court will not ordinarily interfere, although, separately considered, they might be objectionable. If, however, they are so framed as to present a conflict, or tend to mislead the jury, they will constitute a ground for reversal. Hoben v. The Burlington and Missouri River Railroad Co., 20 Iowa, 562; Price v. Mahoney, 24 id. 582. The instructions for plaintiff, under consideration, directed the jury that the fact that the defendant agreed to keep the hedge between himself and plaintiff in repair would not justify the defendant in cutting down and throwing the hedge and rubbish upon the land of plaintiff. Abstractly considered, this instruction furnishes a correct enunciation of the law; as applied to the facts of this case, however, it is perhaps too broad and general. Hence the court, at the request of the defendant, presented the limitations and qualifications with which it was to be received.

The jury were further told that, if the defendant cut the hedge m good faith, simply to imyprove and strengthen the fence and make it useful, and did not incumber the land of plaintiff or permit the same to remain ineumbei-ed with the material, more them was necessary in the proper performance of the work, and if the same was done in a manner satisfactory to both parties, and the plaintiff stood by and seno it done and made no objection to the manner in which it was done, for such acts he could not recover. The instructions thus limited are clearly correct. The evidence not being before us, we do not know whether any proof was introduced, which would have justified the jury in holding that the defendant acted in good faith, and with ordinary care. From the record before us we cannot reasonably infer that these instructions mislead the jury to the defendant’s prejudice.

III. It is further claimed that the plaintiff’s tenth instruction is inconsistent with the defendant’s sixth. These instructions are as follows:

4. Trespass : highway. 10. “ Even if defendant was authorized to open the road on plaintiff’s land, he could not go beyond the line of the roa^ > aD-4 ^ ke cut ^he Hnd °f plaintiff, or removed the fence more than sixteen and a half feet east of the true line in the road, such an act was a trespass for which plaintiff is entitled to recover,”

6. “It is not true that if, while acting as road supervisor, the defendant, in opening the road in controversy, placed the fence an inch too far, he is liable in trespass. If defendant, in the performance of his duty as road supervisor, does the same in an ordinarily prudent and careful manner, then he cannot be made responsible for slight discrepancies.”

The remarks before made are equally applicable to these instructions. As applied to the facts of many cases, instruction ten would need no modification. As applied to the case under consideration, however, it was, perhaps, objectionable, in that it loses sight of the maxim de mmArrms non ourat lex. Instruction six, of defendant, supplied this defect. Together they contain a fair statement of the law, by which it is not probable the jury was misled.

IY. The only remaining alleged error insisted upon is the giving of the following instruction:

5. — lands in tenant!ion oi “ Even if the land was in the possession of a tenant at the time of throwing down the fence, if you find that defendant was a trespasser in throwing down the fence, and that the trespass was an injury to the real estate, plaintiff would be entitled to recover. A permanent injury to a fence is injury to realty, for a fence is a part of the land.” No question is made upon the plaintiff’s ownership of the locus in quo, but it is claimed that he cannot maintain the action if the premises were in the occupancy of a tenant.

At common law, possession in fact of the real property to which the injury was done was necessary in order to entitle a party to maintain an action of trespass quame clausum fregit. Wickham v. Freemam, 12 Johns. 183" court="N.Y. Sup. Ct." date_filed="1815-05-15" href="https://app.midpage.ai/document/wickham-v-freeman-5473506?utm_source=webapp" opinion_id="5473506">12 Johns. 183; Stuyvesant v. Dunham, 9 id. 61; Campbell v. Arnold, 1 id. 510. A landlord could not maintain an action of trespass for an injury to land while his tenant was in the actual possession of the premises. The landlord or reversioner, however, could maintain an action on the case for the injury to the reversion. These distinctions grew out of the refinements of the common law, which varied the form of the remedy with the nature of the injury, and the character of the relief required. Happily -these refined distinctions have no place in our system of jurisprudence. All technical forms of action áre abolished. All that is required is, that the facts constituting the cause of action shall be alleged. And, if these facts are such as would have entitled the plaintiff to relief under any of the recognized forms of action at common law, they furnish the basis of relief under the code. We hold, therefore, that, under the system of procedure recognized by the code, the owner of real estate which is in the actual occupation of a tenant may maintain an action for an injury to his estate.

6. —fences. It is further claimed that whether an injury to the fence is an injury to the realty is a question of fact for the jury. Prima facie a fence constitutes a part of the realty, and is such as matter of law, as much as a barn or a house. If it is not impressed with that character it is in consequence of peculiar circumstances, which must be shown by the party claiming the advantage thereof. It does not appear- in this case that any proof was introduced upon the subject.

The court, therefore, did not err in charging the jury that the fence was part of the realty.

We discover no error in the proceedings below.

Affirmed.