58 A. 734 | R.I. | 1904
This action is trespass on the case for interference with a right of way.
The cause of action alleged is the erection of a fence by Peleg A. Walton, and the continuance of the fence and erection of other impediments by Frederick E. Brayton, who bought the land of Walton. Walton having died, the action is brought against his administrator and Brayton. The defendants severally demurred, on the ground that they were improperly joined; and the administrator demurred also on the ground that there is no allegation that the claim was presented to him according to law before suit was brought. The District Court sustained the demurrers, and the plaintiff has excepted to its ruling.
We think the demurrers were properly sustained, and the exceptions should be overruled. The present owner is not responsible for the damages suffered by the plaintiff before he owned the land, and the intestate is not responsible for damages caused by the action of the present owner unless he conveyed the land with covenants of warranty, which the *234 declaration does not allege. Wood Nuis. § 828; Lohmiller vWater-Power Co., 51 Wisc. 684-689.
The claim against the intestate for the erection of the fence survived under the statute, but it should have been presented to his administrator before suit. The declaration may be amended so as to set forth the cause of action, either joint or several, on which the plaintiff intends to rely.
Exceptions overruled, and cause remanded to the Eighth District Court for further proceedings.
