Prouty v. Mather

49 Vt. 415 | Vt. | 1877

The opinion of the court was delivered by

Powers, J.

This was an action of trespass quare clausum fregit, originally brought before a justice of the peace, and taken thence by appeal to the County Court. At the outset of the trial, the defendant interposed a motion to dismiss, on the ground that the justice before whom the action was commenced had no jurisdiction of the case, for the reason that the title to land was involved. The defendant’s counsel has called our attention to a great number of cases where the provisions of the statute limiting the jurisdiction of a justice of the peace have been construed, but none of them apply to this case. The phraseology of the statute defining the jurisdiction of justices in the statute now in force, differs materially from that of the old statute under which many of these cases were determined. Sec. 18, c. 31, Gen. Sts. expressly confers upon justices of the peace, jurisdiction to try actions of trespass on the freehold where the sum in demand does not exceed twenty dollars. In Small v. Haskins, 26 Vt. 209, this question was raised upon the statute as it now stands, and the court held that the statute conferred the jurisdiction upon the justice ; and since that decision was made, the question has been considered as no longer open to debate.

The defendant insists that the third count in the declaration is a , count in case, and cannot be joined with the first and second counts, which are in trespass, because it discloses a different cause of action. This question is raised on a motion in arrest of judgment made after verdict.

A motion in arrest for a defective declaration, can only prevail when the defects complained of are matters of substance, and could have been reached by a general demurrer. Our statute provides that counts in trespass and case may be joined, if for the same cause of action; and the inquiry arises upon the construction of this third count. It alleged that the plaintiffs were in posses-' sum of certain premises, describing them, in Marlboro, and then proceeds, “ the defendant, whilst the said plaintiffs were so interested and in possession, to wit, on the first day of May,. 1868, and on divers other days between the first day of May, 1868, and the day of the commencement of this suit, in Marlboro, in the County Windham, wrongfully and unjustly, without the leave or license and against the will of the plaintiffs, entered upon the plaintiffs’ close, erected and caused to bo erected a- dam across said last-mentioned stream,” &c., setting forth damages consequent upon the overflow of the plaintiffs’ land by the erection of said dam. The gist of the action of trespass on the freehold, is the breaking and entering of the plaintiffs’ close. In contemplation of law, every man’s lands are inclosed by an actual or imaginary boundary ; and any unlawful crossing of such boundary, is a breaking of the inclosure and entry, “ through the break,” upon the inclosure. Do the words in italics above, in substance set out a. breaking and. entering of the plaintiffs’ lands ? The absence, of the usual allegation that the “ entry” was made vi et ármis, is of no importance in this inquiry. Those words have little importance at the present day, and the omission to insert them in a declaration can only be reached by a special demurrer, as was held in Higgins v. Hayward, 5 Vt. 73.

It is plain that an entry on land with the leave or license of the owner, would be no trespass ; and it is equally plain that, ordinarily, an entry against the leave and will of the owner, would be a trespass. Such entry is charged in this count to be also wrongful, which negatives any “ right ” in the defendant to enter. We think the language used in setting out the entry imports every element comprehended in the words, broke and entered, usually adopted in the precedents. There is no rule nor decision that requires the injury to be described exclusively by the words, “broke and entered the close with-force and arms;” but any language importing a forcible and unlawful entry is sufficient. 2 Waterm. Tresp. s. 991, citing Griffin v. Gilbert, 28 Conn. 493. While we hold this count sufficient as a count in trespass on a motion in arrest, we are not to be understood as sanctioning such looseness in pleading as the count discloses. Every practitioner has an abundance of approved precedents at hand, and a more frequent recurrence to them would better preserve the symmetry of the law and the patience of the court.

The plaintiffs claim title to the locus in quo from the administrators of Seth and Stephen Miller, who conveyed the same to them by deed dated April 1, 1850. This deed is in form like an administrator’s deed, but the administrators saw\ fit to insert a general covenant of warranty to defend the title against all persons whatsoever. These grantors had no power to make such covenants binding upon the estates they represented. Mason v. Ham, 36 Me. 573 ; Sumner, admr. v. Williams, 8 Mass. 162. But such covenants do bind the administrators personally. If an administrator chooses to add to the oi dinary obligations of an administrator’s deed, a personal covenant of his own, to better assure the conveyance, he will be held to respond to the full scope of the covenant. Sumner v. Williams, 8 Mass. 162 ; Stinchfield v. Little, 1 Greenl. 231; Goe v. Talcott, 5 Day, 92 ; Whiting v. Dewey, 15 Pick. 428, 433 ; Aven v. Beckom, 11 Ga. 1 ; Megee v. Mellon, 23 Miss. 586.

Subsequently, John Reid, one of these administrators, acquired from the defendant’s grantors, Dan Mather and Cotton Mather, respectively, on the 12th day of April, 1853, and 13th day of January, 1852, the title or easement in the plaintiffs’ lands which they had or claimed, to maintain the dam and raise the water in the pond. Ihe effect of these last conveyances was, to relieve the plaintiffs’ title of such easement through the operation of the covenant in their deed of April 1, 1850. Cross v. Martin, 46. Vt. 14.

The jury found under proper instructions that the trespasses were committed on the plaintiffs’ land.

Judgment affirmed.