84 Ky. 312 | Ky. Ct. App. | 1886
delivered the opivion of the court.
Tlie appellant, James Walden, filed Ms petition in the Jefferson Common Pleas Court against the appellee, John D. Conn, in which he alleged, in substance, that being the owner and in the possession of one acre of land lying in Jefferson county, giving a particular description of the land, he, in March, 1884, rented the same to — Smith for the term of one year, and placed him in the possession thereof ; that on or about the first day of April, 1884, the appellee forcibly, unlawfully, and without- plaintiff’s consent, and without the consent of plaintiff’s tenant, Smith, entered upon said land and built a fence thereon, and deprived plaintiff and his said tenant of the use and possession of said land. Plaintiff says he has been damaged by the said unlawful acts of defendant in the sum of five hundred dollars. He prayed judgment for that sum.
The appellee filed a demurrer to the petition, which was overruled by the court. He then, by answer, fully denied the allegations of the petition.
If the appellant’s petition sets out a cause of action, then the court’s instruction was wrong. But if the petition sets out no cause of action, then the court’s instruction was right. While the question to be settled here has never heretofore been before this court, yet it is of easy solution.
It is a well settled rule that when a contract of tenancy is consummated by the entry of the tenant, the exclusive right of possession is thereby instantly changed from the landlord to the tenant during his term, and for any injury to that possession, the right of action is exclusively in him. This is so whether he retains the possession or not, because it is his exclusive right of possession that gives him the exclusive right of action for any injury done to it, either by the landlord himself or a stranger, during the existence of that exclusive right. During the continuance of the tenant’s right of possession, the landlord has no right of action for any injury done to it by a stranger or the tenant himself. His right is confined to the protection of his reversionary interest merely. For any injury to his reversionary interest, either by his tenant or a stranger, he may have any appropriate action of redress, but not an action of trespass, because that action lies alone for an immediate and direct injury to the possession, and the tenant having the exclusive right to the possession, he alone can resort to that kind of action.
As not inconsistent with the foregoing views, but as rather a continuation of them, if a stranger, either by threats or force, or by fraud or circumvention, drives the tenant away from the premises, or induces him to leave them, knowing that he is a tenant, and intending thereby to wrong or injure the landlord, and whereby the landlord does in fact sustain a loss of his rents, which he would have received if the tenant had continued in possession, or whereby he sustains damages in the destruction of the premises, or in the dilapidation of them, injurious to the reversion by reason of being vacant and unoccupied, then he .may, by an action in the nature of a special action on the case, recover such damages as above indicated against the stranger. (Blackstone's Commentaries, 3d Book, p. 182; Taylor on Landlord and Tenant, 4th edition, p. 118; Aldridge v. Stuyvesant, 1st Hall's New York Reports, p. 214.)
Also, under such circumstances, the fact that the tenant had no right to abandon the possession of the
As we have seen, the landlord’s remedy against the stranger in such cases is by special action on the case, in which the special damage that the party has sustained. must be alleged and proved.
Here, the appellant did not allege in his petition that he had sustained the loss of. any amount of rent, or that he had been damaged by the destruction of his premises, or by the dilapidation of them in any way. The lower court, therefore, did right in giving the jury the peremptory instruction to find for the appellee, and the demurrer should have been sustained to the petition.
Wherefore, the judgment is affirmed.