Catlin v. Hayden

1 Vt. 375 | Vt. | 1829

Hutchinson, J.

delivered the opinion of the Court. This being an action of trespass upon the freehold, it is a conceded point that the plaintiff must have had possession of the premises at the time the trespass was committed,or he cannot maintain the action. Whether the testimony shows that he had such possession, is the principal matter of dispute. The plaintiff’s counsel contend that Wiggins was merely a tenant at will to Tuttle, and, therefore, Tuttle, or his co-tenant, Catiin, can maintain this action — That, for this purpose, the possession of Wiggins must be considered' 'the possession of' Tuttle and Catiin.

The tenancy in common of Tuttle and Catiin is sufficiently shown to plhce them on equal footing in point ■of possession; at least, we so consider ■it nn our present decision. Had the plaintiff, then, or had Tuttle, such possession as will enable him to maintain this action of trespass ? The authorities have been presented on both sides with a plausible application. The case cited by the plaintiff’s council from the 11, Mass. R., exhibits a thorough investigation of authorities, and produces the result that the owner of the soil may maintain trespass qua- clau.fre. for an injury done while a tenant at will is in possession of the premises. The court, •in malting this decision suppose it directly opposed to the cases now cited by the defendant’s counsel from the first and third vol. ■of Johns. R. It is not easy to ascertain, from the reports of those cases,how far they should be governed by similar principles. The case in the 3 Johnson■ is clearly a lease for years: and the paintiff had not, in any sense, the possession or the right of possession, when the trespass was committed. In the case cjted from 1 Johnson, it is said “ that one A was in possession under the' plaintiff, to whose agent he paid rent.”Now, this might have been a direct lease for years; or might have beenrunniug with a punctual payment of the rent, till it had become a tenancy from year to year. In both these cases the court decide that trespass will not lie in favor of the landlord : but they say nothing about tire tenure, whether a tenancy at will or for years.

. In the case cited from the 11 Mass Rep. tire court treat the case as technically a tenancy at will. The report.states the case to be, that one A took possession under a parol lease in May, and continued to possess till November — That in May, while A was in possession, the trespass was committed, and a similar trespass the next season, without saying whether A was in possession the second season, or whether his parol lease was,by its terms, to continue till the first November mentioned. We must presume it indefinite in point of time at its creation ; for .in such case only, would its terms indicate a tenancy at will, as it is treated by the court. And the authorities upon which the court base their decision, are all cases of tenancy at will, properly speaking. Indeed, they rely upon ancient authorities, and trace them back beyond the period when tenancies at will were wont to be treated as tenancies from year to year.

Adams, Van Mess and Aden, for plaintiff. Bailey and Marsh, for defendant.

If the case before us were a tenancy at will of the most absolute kind, so that the landlord might determine his will at pleasure* without previous notice, we should incline to follow the decision in Mass. Rep. But this is not such á case. Wiggins was a tenant at will, because the statute declares all estates created by parol, for more than a year, to be estates at will. Yethe was not liable to he turned out by Tuttle or the plaintiff, without a half years notice to quit. Not only was his tenancy, by the terms of it, to continue during the controversy between the plaintiff and Tuttle about these lands, but, after that, he had a right to purchase, and thereby retain possession. The statute, making all this a tenancy at will, dóes not deprive Wiggins o'f his right to half a year’s notice of the determination of the will before he is obliged to quit the premises. During Wiggins’ tenancy, so far from its being true that his possession Was the possession of the plaintiff or Tuttle, they had no right to enter upon him at all without the half year’s notice to quit: and such entry would be a trespass for which he might sue'. The possession of Wiggins was the possession of Tuttle and Catlin in its effect in creating a title by fifteen years possession , but not so in dictating who may sue for a trespass upon the land. It is said the landlord may sue tenant at will for a trespass he commits upon the land. That is true : and the reason is, the tenant by the act of trespass determines his will, and destroys the very tenancy he wishes to set up in his defence.

In the case before us, the tenancy was in fact continued by the mutual assent of parties, and, until notice to quit, and the half year elapsed, Wiggins had as good a right to hold possession against his landlord, (he committing no trespass to determine his will) as if he held a lease for years that would expire at the end of said half year after notice, to quit.

The judgment of the County Court is affirmed in both cases.