Marsh v. Rutland Railroad

80 Vt. 397 | Vt. | 1907

Rowell, C. J.

Case in two counts. The first count alleges that for five years next before suit brought, the plaintiff occupied a pasture as tenant; that during his occupancy the defendant located a spur track across the same, and procured the appointment of commissioners’ to determine the damages, who appraised the same and reported in writing, and as a part of the compensation awarded, required the defendant to make suitable farm crossings for the convenience of the premises; that the track was built on a foundation of stones and rocks, but that the defendant had negligently and wrongfully omitted to make any crossings, without which it is impossible for cattle and teams to cross the track, by reason whereof the plaintiff has suffered damage.

The second count declares upon the defendant’s neglect to keep up and maintain the fence between its main line and said pasture, whereby the plaintiff was deprived of the use of the pasture for a time.

The agreed facts show that the neglects declared for in both counts damaged the plaintiff a hundred dollars, but they do not apportion the damages between the counts. The plaintiff had judgment for nominal damages, to which he excepted. He could have judgment for no more, for the damages were not apportioned, and the first count is bad, for it does not show that the plaintiff’s estate in the land was such that the defendant ■owed him any duty in respect of building the crossings. True, it alleges that he occupied as tenant, but the nature of his tenancy is not disclosed, whether for years, from year to year, at will, by sufferance, or what otherwise it was.

As the count must be construed most strongly against the plaintiff, there being nothing here to modify the application of that rule, as there was in Royce v. Maloney, 58 Vt. 437, 445 5 Atl. 395; and as all reasonable presumptions must be made in favor of the correctness of the judgment below, — it must be ■taken that the plaintiff was tenant by sufferance, which is the least of all tenancies; for although such a tenant enters by right, he holds by wrong. He has no assignable estate; cannot maintain trespass against the landlord; is not entitled to notice to quit.

It is unnecessary to consider the second count, for if good, the judgment is right; and if bad, the defendant does not question the judgment.

- Judgment affirmed.