| Vt. | Mar 15, 1854
The opinion of the court was delivered by
The plaintiff has brought this action for the erection and continuance of a dam across a stream of water, in Ludlow, which caused the overflowing of his land.
In relation to the interest and right of the plaintiff in the land overflowed, we learn that the premises were formerly owned by Mr. Wetherbee; that on the 28th of October, 1835, Mr. Wetherbee executed his bond to the plaintiff for the conveyance of the land to him, and that immediately thereafter, the plaintiff entered into the possession of the premises, erected buildings thereon, and has continued his occupation and possession of the premises ever since. The premises were afterwards conveyed by Mr. Wetherbee and the plaintiff, to Mr. Carpenter as security for a debt, and in trust for the plaintiff, and on the 25th of November, 1847, were conveyed by Mr. Carpenter to the plaintiff; thus vesting in him the legal as well as the equitable title to the land. From the 28th of October, 1835, when the bond was executed, to the 25th of November, 1847, when the deed to the plaintiff was given by Mr. Carpenter, the plaintiff had an equitable interest in the premises,,
It is insisted that the plaintiff can sustain no action of this character against the defendant, for any injury during this period; and that the jury under the charge of the court, improperly estimated damages, sustained during a portion of that time, which arose from the erection of that dam.
As a general rule, an action must be brought in the name of the party whose legal right has been affected. A person who has but an equitable interest cannot generally sue at law, particularly in real actions, which are founded upon title. But where one is in the actual possession and occupancy of premises, he may sustain a personal action for injuries done to that possession, against a wrong doer, or one who has not a better legal title, or right of possession. Actual possession is a good title against any one who cannot show a better right. Graham v. Peat, 1 East. 244. 1 Chitty’s Plead. 46. Lambert v. Stroother, Willis 221. Hull v. Fuller, 4 Vt. 199" court="Vt." date_filed="1831-01-15" href="https://app.midpage.ai/document/hull-v-fuller-6571389?utm_source=webapp" opinion_id="6571389">4 Vt. 199.
Unless the defendant, therefore, established a legal right, not only to the erection and continuance of the present dam, 'but the i-ight also to flow the water upon the pi’emises in the possession of the plaintiff, we think the court were justified in their charge to the jury, that the plaintiff’s .right to the premises was sufficient to entitle him to recover damages, which were sustained at any time within six years before the commencement of this action. Hall v. Chaffee, 13 Vt. 150" court="Vt." date_filed="1841-01-15" href="https://app.midpage.ai/document/hall-v-chaffee-6572437?utm_source=webapp" opinion_id="6572437">13 Vt. 150.
In respect to the right of the defendant to erect a dam across this stream, we learn from the case, that on the 18th of August, 1835, Mr. Wetherbee conveyed certain premises to the defendant of which he is in possession, with the right of erecting a dam across that stream on the premises conveyed, of the same height a dam had formerly been erected. The defendant’s buildings are erected upon those premises. This deed gave no right to the defendant to erect the present dam, as it was not erected upon those premises, but several rods above, and near the land of the plaintiff; indeed, the right to erect the present dam, and to flow back the water, is not claimed under this deed. The present dam was erected in 1836 upon the land of Mr. Wetherbee, and by his permission. That parol permission to erect this dam, gave the defendant no right to the land, or to flow the water upon the premises occu
Whether, therefore, we look to the several deeds of Mr. Wetherbee to the defendant, of August 18, 1835, and of June 22, 1847, or to the parol permission granted in 1836, the defendant had no right to erect, or continue the erection of the dam, where it is now situated, so as to cause the water of that stream to flow upon the land of the plaintiff. The jury have found, that the dam was erected by the defendant, and that the plaintiff has sustained damages in consequence of its erection, and the flowing of the water back upon his premises. Upon those facts, the plaintiff is entitled to recover such damages as he has sustained from that cause, in being prevented or disturbed in the full enjoyment, and use of the premises in his possession.
The language of the court, in their charge to the jury, that the plaintiff was entitled to recover for any injury occasioned to his possession, &c., should be understood with reference to its context, and the facts appearing in the ease. It has reference only to such
The objection to the competency of Calvin R. Sears, as a witness was properly overruled. The mortgage given to his wife created an interest in the land, which by the marriage might vest in the husband, but at most it was contingent in its character, as the debt might have been satisfied without resorting to the mortgage security. But if he. was interested in the event of the suit while'they held that mortgage, its assignment to Calvin L. Gilbert removed the objection. The assignment was a valid transfer of the mortgage as against the witness and his wife, and will estop them from claiming the same, as against their deed of assignment. A delivery is presumed, as no fact is stated in the case showing it otherwise. The reassignment of the judgment removed the objection from that source. The assignment of the mortgage and the debt secured thereby to Gilbert, restored the competency of the witness, but they were all circumstances which could properly be taken into consideration as affecting the credibility of the witness.
The judgment of the County Court is affirmed.