25 Vt. 620 | Vt. | 1853
This is a special action on the case, to recover damages, which the plaintiff sustained by reason of the falling of a staging, which he had erected for his own use, in consequence of the defendant’s having removed one of-the staging poles, which was unknown to the plaintiff, when he went upon the staging.
Under the charge of the court, the jury must have found, that the staging pole, which the defendant removed, was, when taken by the plaintiff, the property of the defendant, and that it was taken without his permission, and that defendant did no more to the plaintiff’s staging, than was necessary to repossess himself of the bar, or staging pole. The only question in the case relates to the defendant’s right to recapture the bar, under the state of facts found in the bill of exceptions, and whether he was bound to give notice to the plaintiff of its removal. The plaintiff was a trespasser, in taking the bar or pole, to use in the erection of his staging ; and when property is so taken from the owner, the right of recaption exists, unless there is something in the case, to take it away. It cannot with propriety be claimed, that the plaintiff acquired a property in the bar, by the principles relative to the acquisition of rights by accession. Though the pole or bar belonging to the defendant, was annexed to, and became a part of, the plaintiff’s staging, yet it did not loose its identity; and the general principle is, that so long as the identity of the original material can be proved, the right of the original owner is preserved in the property. Besides, even the civil law would not allow a party to acquire a title by accession, founded upon his own act, unless he had taken the materials in ignorance of the true owner, and the materials were not capable of being restored to their original form; and by the English law, he could not claim title by accession, if he took the property of another by a wilful trespass. This was necessary to avoid the giving of encouragement to trespasses. In the present case, there is no pretence, that the plaintiff took the bar by mistake, or under a supposed right of title, and it must betaken to be a wilful trespass on his part. The property in the bar remaining in the defendant, he was justified in the recaption of it, unless rendered unlawful from the time, or the manner in which he exercised the right. As the bar was removed from the staging, in the absence of the plaintiff, it was claimed, that the defendant should have giv
The right of the defendant was absolute, and not dependent upon his giving notice, and the. maxim, “ sic utere tuo fyc.f will not apply, for the reason, that the plaintiff had no right in the use of the bar, to injure. He was, all the time, he continued in the use of the bar, as a part of his staging, but a tortfeasor. It was his business to see that the staging -was safe before he went upon it, and if he did not, it must be his misfortune, and not that of the defendant. Though the plaintiff may have sustained damage, yet it is damnum, absque injuria, and the judgment of the County Court is affirmed.