French v. Holt, 57 Vt. 187

57 Vt. 187 | Vt. | 1884

Lead Opinion

The opinion of the court was delivered by

Rowell, J.

A majority of the court think this judgment should be affirmed.

The second count is in case both in form and substance. The thing complained of is, that defendant “ wilfully left said gate open.” It is not alleged that he opened it, and no such inference can properly be drawn from the allegation that he left it open. It may as well be inferred that in travelling the way he found and left it open, or lawfully opened it to pass through and omitted to 'shut it. In any view, he is charged with a mere non-feasance, and a mere non-feasance is not a trespass, and will not make one a trespasser ab initio even though it consists in the abuse of an authority given by law: Stoughton v. Mott, 25 Vt. 668; Redfield, Ch. J., in Stone v. Knapp, 29 Vt. 501. Trespass lies only for immediate injuries committed with force, actual or implied; and an injury is considered immediate when the act complained of, and not merely its consequences, occasions it. 1 Chit. Pl. 126. But here the injury complained of was not the immediate but the mediate result of the omission complained of.

The count goes for damage to crops growing on plaintiff’s land, and on the general issue pleaded to it, plaintiff would be put to the proof of title to land in order to make a case; and although proof of a possessory title might be sufficient, even that would oust the justice of jurisdiction were this the only count in the declaration; for it is not left to be determined by the pleadings subsequent to the declaration whether the justice has jurisdiction, but whenever the declaration is of such a character that, under the general issue or any other plea that puts the plaintiff to the necessity of proving the declaration, he is bound either to prove or disprove a title to land, the justice has no jurisdiction. Poland, Ch. J., in Jakeway v. Barrett, 38 Vt. 316; French v. Holt, 51 Vt. 544. This last case was between these same parties for the statutory penalty for leaving this gate open, thereby exposing plaintiffs lands and crops to damage, and it was held that the justice had no jurisdiction, as the title to land was concerned. The case before us is not distinguishable from that in this respect.

But it is said that although this count may be in case and the title to land concerned, yet it may be joined with the first count, as both are for the same cause of action, and s. 912, R. L., provides for the joinder of trespass and casé when for the same cause of action. Conceding that both counts are for the same cause of action, which is not decided, then they cannot be joined, for s. 821 expressly excepts from the jurisdiction of justices all actions in which the title to land is concerned except trespass on the freehold in which the sum demanded does not exceed twenty dollars; and to warrant a joinder under s. 912, the court must otherwise have jurisdiction of both forms of action in the concrete case. To hold differently would be to partly repeal by implication said exception in s. 821, a kind of repeal that is not favored in law, and is never held unless the subsequent statute is so inconsistent with the former that both cannot stand together. But here both may stand together, and the view here taken leaves both operative. Hence, the justice had no jurisdiction, and he could not amend himself into jurisdiction by striking -out the count in case. Chadwick v. Batchelder, 46 Vt. 724. Nor by pleading to issue in the justice court after his motion to dismiss was overruled did the defendant waive his right to object in the County Court for want of jurisdiction. That the court has no jurisdiction of the action may be objected at any time; it is not dilatory matter, which is waived if not objected at the first opportunity: cases passim.

Judgment affirmed.

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Dissenting Opinion

Dissenting opinion by

Ross, J.

I am unable to concur in the decision by the majority of the court. I think an inspection of the two counts renders it manifest, that the subject matter in controversy is the same in both counts, — the wrongful allowing the plaintiff’s cattle to enter his tilled fields and do damage there, either by wilfully opening and leaving open the gate across the pent road, when the defendant had no lawful occasion to pass through the gate, as alleged in substance in the first count; or having lawful occasion to pass through the gate, and so lawfully opening and then wilfully and wrongfully leaving said gate open. In either case, the plaintiff’s tilled fields were exposed to, and damaged by, his cattle from the adjoining pasture. That more special damages are set forth in the second count than in the first does not make the cause of action counted upon different. The pleader being in doubt in regard to his proof, whether it would show a wrongful opening of the gate, or only a wilful and unlawful leaving of the gate open, used the two counts, that his declaration might be adapted to and be supported by his proof. The justice jurisdiction act — s. 821 R. L. — in force, when in 1856 the act — s. 912 R. L. — allowing counts in case to be joined with counts in trespass, when for the same cause of action, was passed, gives a justice jurisdiction of actions of trespass upon the freehold when the damages demanded do not exceed twenty dollars. To the extent that the title to land might be involved in actions of trespass on the freehold where the sum demanded does not exceed twenty dollars, the act confers jurisdiction upon a justice of the peace to try actions involving the title to land. The act of 1856 is not restricted by its language to actions in the County Court, but is broad enough to authorize the joining of such counts in whatever jurisdiction the cause might be pending. It is of a highly remedial nature, intended to avoid the difficulty, often expei’ienced by expert pleaders, in adapting the count or form of action to the proof, and so to avoid a failure of justice through a technicality in pleading. I think the act of 1856 was intended, and should apply as broadly to causes over which s. 821 confers jurisdiction upon a justice of the peace, as to actions in the County Court. In my judgment this construction of the act of 1856 does not enlarge the jurisdiction of the justice of the peace, but simply gives him the right to try in a count on the case if his proof should fail to show a direct injury or trespass, what he could before try in a count in trespass if the proof showed the injury to be direct, instead of consequential; that is, to try a case that might involve the title to land in a count in case, wherever he could try it in a count in trespass. In my judgment the decision unwarrantably limits the beneficial scope of the act of 1850. I should reverse the judgment of the County Court, and hold that the counts were properly joined.