24 Me. 482 | Me. | 1844
The opinion of the Court was drawn up by
This bill of exceptions presents three questions for consideration. 1. Whether the deed from Abner Knight to George Knight conveyed the whole or an undivided half of the salmon fishery. 2. Whether a conveyance made by one tenant in common of a portion of the common estate by metes and bounds be void as against a co-tenant, or valid until he give notice to the grantee, that he elects to avoid it. 3. Whether the plaintiff be entitled to recover damages for being kept out of the occupation of any portion of the salmon fishery, after he was deprived of it, without having first regained possession by entry or otherwise.
The case of Atkinson v. Teasdale, 3 Wil. 278, was an action on the case for the disturbance of a common of pasture by a tenant in common against his co-tenant. The declaration alleged a disturbance on a particular day, “ and on divers other days and times between that day and the suing forth of the original writ.” The plaintiff obtained a verdict, and judgment was entered upon it. The case was much contested and twice argued, but no objection was taken to the plaintiff’s right to recover for the continued wrong. The case of Blissett v. Hart, Willes, 508, was a like action for the disturbance of a ferry, against one who had set up another ferry near to it. The declaration alleged the injury on a certain day, and continued on divers other days and times. The plaintiff had judgment. This also was a case much contested and twice argued on a motion in arrest of judgment. The forms for the disturbance of such rights in the best precedents for declarations, contain a clause for a continuance of the wrong. And there is little reason for requiring numerous actions to be brought for each disturbance, when entire redress may be obtained by one without a violation of any rule of law. It is difficult to perceive any sufficient reason for the application of a different rule to actions of this description from that, which prevails in actions on the case for other injuries, and in actions of trespass. And it is well settled, that entire damages may be recovered in the latter class of actions for a repetition and continuance of the injury, as well as for the first injurious act. The case of Winsmore v. Greenbank, Willes, 577, affords a remarkable instance of such a recovery in an action on the case, for enticing away the wife of the plaintiff, and inducing her to conceal herself from him, and for a continu
The policy of the common law and of our legislature is to prevent a multiplication of suits, whenever it can be done without introducing confusion of rights, surprise upon parties, or practical inconvenience, or injustice. And none of these results will be produced by allowing the plaintiff in this case to recover for a continued deprivation of the enjoyment of his rights.
It is further insisted in the argument for the defendants, that the plaintiff cannot recover against both the defendants for such a continued disturbance. It might be sufficient to observe, that such a point does not appear by the bill of exceptions to have been made during the trial. It is obvious, however, that if made, it must have presented a question of fact for the decision of the jury, whether both of the defendants continued to act together and to deprive the plaintiff of the enjoyment of his rights. And it does not appear, that any incorrect in