43 Ind. 30 | Ind. | 1873
This was an action by the appellee against the appellant for trespass upon the lands of the plaintiff. It is alleged in the complaint, that on the 1 ith day of March, 1871, the plaintiff being the owner in fee simple and lawfully seized of the east half of the south-west quarter of section seven, in township twenty, north of range one west, in Clinton county, the defendant, without leave and wrongfully, entered into and upon the same and tore down and destroyed the gate and fencing, etc., thereon, whereby the plaintiff was damaged in the sum of three hundred dollars. The complaint is in two paragraphs, but they need not be separately noticed.
The defendant pleaded, 1. The general denial. 2. That he is the owner in fee simple of eighteen feet in width of the east half of the south-west quarter of section seven, in township twenty, north of range one west, in said county, beginning about sixty-four and a half rods south of the north-west corner of said half quarter section, and extending thence east about sixty-five rods to the Jefferson and Thorntown road; that defendant was, on the 1 ith day of March last, and a long time prior to that date, in possession of said premises, and has been in possession thereof ever since
3. That on the 20th day of February, 1864, one John Moore was the owner of the west half of the south-west quarter of section seven, in township twenty, north of range one west in Clinton county, Indiana; that the plaintiff was at said last named date the owner of the east half of said quarter section ; that said John had no way, or inlet, in or to his said lands; that on said day he purchased of the plaintiff a cartway, beginning about sixty-four or sixty-five rods south of the north-west corner of the east half of said quarter section, and extending thence eighteen feet wide east about sixty-five rods to the Jefferson and Thorntown road; that a copy of the grant of said way is herewith filed and tnade a part of this answer; that said John immediately after said 20th day of February, 1864, in company with said plaintiff located said way and agreed with him where the same should be, and took possession of the same, making said way appurtenant to said John’s said lands; that said John erected and has ever since kept up the fence mentioned in the copy of said contract herewith filed; that plaintiff built his fences-on each side of said way, and allowed them to remain until the Iith day of March, 1871; that the agreement which is a part of the answer, a copy being herewith filed, was fully executed; that said John retained the possession of said way with the full knowledge and acquiescence of the plaintiff, until the - day of-18 — , when he, said John, sold and conveyed to defendant his lands, the west half of sáid quarter section, with the appurtenances thereto; that thereupon the defendant took possession of said way, and has ever since held the possession and use
The plaintiff traversed the second paragraph of the answer by a general denial, and demurred to the third on the ground that it did not state facts sufficient to constitute a. defence to the action. This demurrer was sustained by the court, and the defendant excepted. A trial by a jury terminated in a verdict for the plaintiff. A motion for a new trial was made-by the defendant, which was overruled by the court, and final judgment was rendered on the vefdict.
The errors assigned call in question the rulings of the circuit court in sustaining the demurrer to the third paragraph of the answer, and in refusing to grant a new trial.
The blanks in the third paragraph of the answer for the date of the deed from John Moore to the appellant leave us without any information as to the time when that deed was made. The appellant claims that the way was' append-ant or appurtenant to the land conveyed by that deed. If so, the right to the way passed by the deed conveying the land,.
The other questions arise under the assignment of error relating to the overruling of the motion for a new trial. The reasons for a new trial, among others, were, that the damages were excessive, and that the court erred in one of its instructions to the jury. The damages were fully twice as much as the actual injury sustained. The instruction complained of is as follows : “ If the jury find for the plaintiff, you may assess the damages at such sum as will cover the actual damages proved, and to this you may add such vindictive damages as you may deem just and right, having regard for all the circumstances of the case. Vindictive damages are assessed, not as payment to the plaintiff for the injury done, but as a punishment inflicted upon the wrong-doer.”
In our opinion, this instruction was incorrect. It has been decided, that if a trespass has been committed with malice, insult, or deliberate oppression, the jury may join exemplary damages to the pecuniary loss. Anthony v. Gilbert, 4 Blackf. 348; Taber v. Hutson, 5 Ind. 322; Millison v. Hoch, 17 Ind. 227. There are no elements of malice, insult, or deliberate oppression in the case under consideration. On the contrary, it appears pretty clearly that the appellant was acting
The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial, and leave to amend the pleadings, if desired.