Higgins v. Farnsworth

| Vt. | Feb 15, 1875

The opinion of the court was delivered by

WheeleR, J.

The plaintiff in her declaration has set forth that she was “possessed of a certain way and right of way” appurtenant to her premises, that the defendant has obstructed it, “ and has thereby hindered and prevented the plaintiff from the use of said way, by reason whereof she has suffered great inconvenience and damage, and by means thereof” her premises “ have been greatly injured and rendered less fit for occupation.” This is, clearly, a declaration for an injury to a right- of way in possession, and not to one in reversion. Her evidence at the trial showed that during the whole time covered by the declaration, the premises were in the occupation of one Hodgman under leases of a year each, made from year to year, and that she had no occupancy of them during that time. The way, being appurtenant to the premises, would, while Hodgman so occupied them, belong to him and not to the plaintiff, and an obstruction of it during that time would be an injury to his right and not to any right of hers, unless it should be of such a permanent nature as to affect the value of her right to the inheritance in reversion. The right of Hodgman to damages for an obstruction during his term, is wholly distinct from hers for an injury to her right as reversioner, although the same act might cause both. This appears from Jeffer v. Gifford, 4 Burr. 2141, where it was moved in arrest of judgment in an action for obstructing ancient lights, for that the interest of the plaintiff was stated to be that of a reversioner only, and if he should recover, the tenant might also, and the defendant be subjected to double damages; but the court held that the rights of the tenant and reversioner were separate, and that each should recover for any injury to his own. Also from Tinsman v. Belvidere & Del. R. R. Co. 1 Dutch. 255, where one count that set forth a reversionary right in the plaintiff and an injury only to the possessory right of the tenants, was held bad. In an action for an injury to a reversionary right, an interest in that right, or one large enough to include an interest in it, belonging to the plaintiff, and an injury sufficiently permanent to affect it, must be set forth. 1 Saund. Pl. and Ev. 295; 2 Chit. Pl. 777, note. In Cushing v. Adams, 18 Pick. 110, the action was for an injury to a right similar to this, in possession, and the evidence showed the premises and way to be in possession of a tenant at will merely. The court recognized the doctrine that a reversioner could not maintain an action for an injury to the right in possession, but held that the possession of such a tenant was the possession of the landlord, and on that ground the action was sustained. If the plaintiff’s evidence in this case could be held to show that she had to some extent received an injury to her reversionary right, she has no declaration for that proof to support; and the evidence did show that she had not the possessory right, for an injury to which she had declared ; so that, taken all together, it appeared that she was not entitled to maintain the action she had brought, and the judgment of the County Court was correct.

Judgment affirmed.