20 N.H. 21 | Superior Court of New Hampshire | 1849
The principles by which the somewhat numerous questions presented by this case art, to he decided, are few and familiar.
The estate which Joseph Stevens owned in common with other parties, was severed after his decease, and his part assigned to his heir, by whom it was held for many years, subject to the right of her mother, the widow of Stevens and afterwards the defendant’s wife, to have dower assigned her therein.
An arrangement was then made, intended to be temporary, and to abide the motion of either party to break it up, by which certain parts of this estate passed into the occupancy of the dowager, or, rather, of the defendant, her husband; and in the course of some years, but when is not precisely shown by the case, the plaintiff, by the death of his wife, the heir at law of Stevens, became possessed of the other portion of the estate as tenant by the curtesy, with- the reversionary interest during his life in the same right, in the portions assigned as dower; or, what seems for the purposes of this case to amount to the same thing, he had the whole estate for his own fife, subject to the right of the defendant’s wife to have dower assigned her, whenever either party saw fit to terminate the occupancy that was arranged as a present substitute for that estate.
Neither the plaintiff nor the defendant had more than an estate for life, the inheritance being in the children of the plaintifij who are not parties to the suit, either in form or in effect. The mere circumstance that the plaintiff is their guardian does not enlarge his rights to recover in
For injuries done to the land, or other thing in the possession of the plaintiff, he may maintain this action. For injuries done to estate not in his possession, he cannot maintain it. This, as to such of the counts as are for breaking the plaintiff’s close, narrows the inquiry, and we are presently to ascertain what portions of the land were and what were not in his possession when the acts complained of were done.
As to the counts for taking and carrying away, it is true, as is suggested by the plaintiff’s counsel, that trees severed from the soil belong not to the tenant for life in possession, and he has no right to remove them. But they do not any more belong to the tenant for life in reversion, and he cannot maintain a possessory action for them. They are, by all the authorities, the property of the owner of the inheritance, whom the law has provided with various remedies appropriate to his interests in them, and which he may pursue, as he is advised. He is not represented in this suit. For any trees, therefore, or other thing severed from the freehold not in his possession, this plaintiff cannot maintain this action.
By the arrangement made in 1833,. possession was given to the defendant of certain parcels of land, terminable at the election of either party. Had that election been made ?
The plaintiff contends that he himself terminated the defendant’s right of occupancy by the notice which he gave on the 16th of January, 1845. But that was a notice that was perfectly consistent with the occupancy enjoyed and claimed by the defendant, for it only warned him against cutting the standing trees. This he had no right to do by the tenure which he had, for there was no
It is said that the defendant terminated his right to occupy, by proceedings that he instituted in the probate court for asserting his wife’s right of dower, and by taking possession under the proceeding. But to this view there are obvious objections.
By entering upon the land designated by the committee of the probate court, he became a trespasser upon the plaintiff’s possession. The act was, therefore, no satisfaction for the rightful possession he had under the arrangement of 1833, and affords no indication of a purpose to abandon that possession, except a purpose founded upon a mistake. He elected to take the land staked out by the committee, instead of that which he had previously occupied; and that is all that the entry upon the former indicated. Had he supposed that he was committing a trespass, there is no possible room for supposing that he intended to abandon his old possession.
Neither did the application to the court of probate for dower terminate the occupancy of the party under the convention of 1833, or afford an indication of an intention to terminate it before a substitute for the land he then held should be obtained under a valid decree of that court.
The unavoidable conclusion therefore is, that the case does not furnish evidence that either the possession which the defendant had under the temporary provision that was made in 1833, or the right of possession, had been lost or terminated.
For all the trees cut and soil dug upon the land so occupied, this action therefore must fail. This category appears to embrace all the acts set up as trespasses, except the trespass named in the first count, which was for breaking the close and taking the oats, potatoes and grass,
The verdict must, therefore, he amended according to the agreement, and reduced to sixty-four dollars, and judgment thereupon entered for the plaintiff.
Judgment on the verdict for sixty-four dollars.
