3 Me. 6 | Me. | 1824
Notwithstanding the wide range which the counsel have taken in this cause, and the elaborate investigation which it has undergone, we are satisfied from a more particular examination of the plaintiff’s declaration, and the facts on which the Judge’s instructions to the" jury, were founded, that the question reserved for our decision is narrower and more simple, than has been imagined, and capable of an easy solution.
The allegation in the writ is, that the defendant, with force and arms, broke and entered the plaintiff’s -close, and carried
By the report it appears that no part of the alleged trespass was proved,’except the breaking and entering the close, or in other words going into it, and tearing or throwing down some parts of the fence on the land, which had been built by Me Kenney, during the tenancy at will, by his own labour, at his own expense, and for his own use. There was no proof that, he had destroyed, or carried away, or appropriated, any part of it. The Judge instructed the jury, that on those facts the action was not maintainable. The counsel for the plaintiff, in support of his motion for a new trial, has relied on the decision in the case of Starr & al. v. Jackson 11 Mass. 519, as establishing the principle that an action of trespass quarc clausum fregit lies for the owner of land in the possession of his tenant at will, where the injury affects the permanent value of the property ; and that that decision is applicable to the case before us. The counsel for the defendant denies that the tenancy of Me Kenney was a tenancy at will, and contends that it was a tenancy fr.om year to year, and so not within the principle of Starr & al. v. Jackson ; and insists further that that case ought not to be received and respected by this Court as an authority.
With respect to the tenancy, we are of opinion it must be considered as a tenancy at will. By the express terms of our statute, and that of Massachusetts, of which ours is a transcript, all parol leases are leases at will only. This same question has also been decided in Massachusetts. With respect to the case of Starr & al. v. Jackson, we apprehend that the facts before us do not require that we should call in question the correctness of the principle laid down by the Court in that case ; nor is it necessary for us to intimate any opinion in relation to the principal point of the decision. The present case is different from that as it regards the nature of the trespass committed, and we may safely rely on some of the undoubted principles of that case to shew that we ought to arrive at a different conclusion in the decision of this. The question there was whether the action should not
Judgment on the Verdict.