Russell v. Stocking

8 Conn. 236 | Conn. | 1830

Williams, J.

Upon this record three questions are presented. 1. Whether evidence of reputation, that this was a private fishery, called The Russell Fishery, should have been admitted. 2. Whether all the plaintiffs have such an interest as to entitle them to maintain this suit. 3. Whether trespass was the proper action.

As to the first: Was evidence of reputation admissible f In what cases and to what extent such evidence is admissible, has been a matter of considerable dispute. Here the plaintiffs claim title by prescription, and attempt to prove, that they, and those under whom they claim, have occupied to a remote period of time, and propose to accompany that testimony with evidence, that this fishery was reputed a private fishery. The latter evidence, if it stood alone, would not deserve much attention; but when connected with other testimony, it may be. important; and its admission is supported by authority. A foundation being laid, by acts of ownership, reputation becomes admissible; particularly, where the claim tends to abridge a public right. “For all mankind,” says Lord Kenyon, “being interested, it is natural to suppose, that they would be conversant with the subject, and discourse about it, having all the same means of information.” Morewood v. Wood, 14 East, 329. in notis. Weeks v. Sparke, 1 Mau. & Selw. 689. Bul. N. P. 295. And in Read v. Jackson, 1 East, 357. it is said, that reputation is evidence with respect to public rights claimed, but not with respect to private rights. Now, the right claimed by the plaintiff, is a right to a fishery in a navigable river, the right to which is prima facie in the public. This case seems, therefore, to be within the principle, which is established beyond controversy, viz. that reputation is admissible where the claim tends to abridge a public right.

2. Can these plaintiffs join in this suit? Some of the plaintiffs claim an absolute right in the fishery; others claim only in consequence of a parol agreement between the owners of the Russell and Blake fisheries to join their interest or stock (as it is termed,) in the two fisheries. The defendants say, that as this agreement rests in parol, it creates no title; for that a right to an incorporeal hereditament lying in grant, it must be by deed. Somerset v. Fogwell, 5 Barn. & Cres. 875.

This principle is not denied. Such also is the case as to lands. Title must pass by deed; and yet possession will bsufficient to maintain an action of trespass. 1 Chit. Plead. 52.

It is said, that this does not apply to incorporeal hereditaments. The rule, however, is general, that in personal actions possession is sufficient to found an action against a wrong-doer. 1 Tidd’s Pract. 396. Thus, in actions for disturbance of rights of common against a wrong-doer, it has been held sufficient to declare upon the plaintiff’s possession though it is otherwise where a charge is laid upon the land. Still, as a general rule, the plaintiff, on the trial, must prove his right. St. John v. Moody, 1 Vent. 274. Stroud v. Birt, Com. Rep. 7. Fitz. N. B. 91. Dent. v. Oliver, Cro. Jac. 43. 122. Saunders v. Williams, 1 Vent. 319. Warren v. Sainthill, 2 Vent. 186. And for disturbance in a church, says Ch. J. Lee, the plaintiff may recover upon his possession; for, says he, it is a rule of law, that one in possession need not shew any title or consideration for such possession against a wrong-doer. Kenrick v. Taylor, 1 Wils. 326. In Stocks v. Booth, 1 Term Rep. 428. 430. the doctrine is somewhat qualified; and Ashhurst, J. says, that “a bare possession can never give a right, because every parishioner has a right to go into the church and holding possession to give a sufficient title “would be an encouragement to commit disorders in the church.” Taking the principle of Ch. J. Lee, with the qualification of Ashhurst, J., it seems to me, that the plaintiffs in this case may recover. There the doubt as to the effect of possession, is founded on the idea, that every parishioner has a right to go into the church; and to support a suit founded on possession alone, would encourage disorders in the church. But, in this case, some of the plaintiffs having established a legal title to the fishery, it is apparent, that the defendants can have no more apology for disturbing the enjoyment, on the ground that it is public right, than they could for entering on land owned by some of the plaintiffs, and taken on shares by others of them, upon the ground that it was once common property. And I see no more reason why the rights of the plaintiffs, who have the legal title, are not to be regarded in the same manner as if their possession was of land instead of an : incorporeal hereditament. And whether the property is corporeal or incorporeal, if it is capable of possession, such possession is a sufficient title against a wrong-doer. And when two or more persons are jointly entitled, or have a joint legal interest, or if there be a joint damage, they must join in the suit. Chitt. Plead. 51. 54.

No sufficient objection to the suit, therefore, exists on this ground.

3. It is also claimed, that this action will not lie. It is admitted, that no such question was raised in the court below; and it would be perverting all the beneficial principles regulating new trials, to allow the defendants to proceed to trial of the facts in the case, and put the plaintiffs to all the expense incident to a trial on the merits, and if they succeeded, deprive them of all the expected benefits, upon some technical objection to the form of the action. Such a practice cannot receive the sanction of this Court. Whatever consideration, therefore, this objection would have been entitled to, in an earlier stage of this cause, it cannot now avail the defendants.

The result is, that there can be no new trial.

The other Judges were of the same opinion.

New trial not to be granted.