Dietrich v. Berk

24 Pa. 470 | Pa. | 1855

The opinion of the Court was delivered by

BlaCK, J.

The trespass alleged here consisted in taking down and carrying away a gate. But the gate had stood on the land of the defendant himself. It would be a curious breaking of a man’s own close which would render him liable to another person in trespass. The only claim or title which the plaintiff had to the locus in quo was a right of way over the defendant’s land, which he had enjoyed for many years, and does yet enjoy. His road ran through the gate in question. He cannot maintain trespass for the removal of the gate for two good reasons. In the first place, the act complained of was not a disturbance of his right to the easement, since he could use his road without a gate as well as with one. And, secondly, if his right of way had been disturbed, his remedy is not trespass but case.

The plaintiff was allowed to recover in the Court below, not on the ground of his easement nor title in the land, nor adverse possession. The controlling fact is said in the charge to be this : that the plaintiff assisted a former owner of the defendant’s land to build a fence of which the gate in question was part, and that the fence was beneficial to the plaintiff as well as to the owner of the land on which it was built. If I build a fence or any other such structure upon my neighbour’s land, it is his, not mine; and the dominion-which every man has over his own property, gives him a right to remove it whenever he pleases. If it be useful to me as well as to him, and if I build it in consideration of his promise that it should stand there for ever, and if he removes it in violation of that promise, I may recover in an action on the contract the value of my labor, and perhaps for the consequential injury. On no principle known to the law can I maintain an action of trespass.

Judgment reversed and ven. fa. de novo awarded.