10 Wend. 324 | N.Y. Sup. Ct. | 1833
The action in this case should have been trespass, and not trespass on the case. The ground oil which the form of the action was endeavored to be maintained at the trial, and also upon the argument at bar, was, that the right to erect the dam, for an injury to which the action was brought, was a franchise, an incorporeal hereditament ; and that for an injury to property, or right of that description, trespass will not lie. The principle here adverted to, does not apply to the case. The right to erect the dam is a franchise; it is conferred by the legislature, the sovereign power; it is an incorporeal right; but the dam itself is not a franchise, nor is it incorporeal. The right to keep a ferry, or to erect a bridge, or to navigate a particular river or lake by steam, may be a franchise; but the bridge itself, or the boats and machinery employed in the ferry, or the navigation of the river, may, notwithstanding, be the subjects of trespass. Suppose the outrage which is alleged in this case to have been committed on the plaintiff’s dam, had been committed upon the Cayuga Bridge, or the steam boat navigating that lake, or the ferry boats between Albany and Greenbush, or Albany and Troy ; can there be a doubt that the individuals who perpetrated the act would be liable as trespassers to the indi- „ viduals or companies to whom the bridge or boats belonged 1 So far as the incorporeal right is invaded, the redress is by an action on the case.? But when" visible, tangible, corporeal property is injured, if the injury be direct, immediate and wilful, trespass is the proper form of action, although that property may be connected with, or be the means by which an incorporeal right is enjoyed.
I did not understand the counsel for the plaintiff to deny, that independently of this particular feature of the case, the action might and should have been trespass. The evidence certainly shows a very clear case of direct and immediate injury, from the wilful and intentional act of the defendants; and in such a case I consider it well settled that the action must be trespass. This subject was very elaborately considered by this court in Percival v. Hickey, 18 Johns. ,R. 257, where all the leading cases were referred to and analized. The case of Leamie v. Bray, 3 East, 593, was considered as
The cases already referred to support this distinction. It was also taken in this court in Blin v. Campbell, 14 Johns. R. 432, and was recognized by Judge Spencer, in delivering the opinion of the court., in Percival v. Hickey. In this case the inju- , ry was direct and immediate, and the evidence showed it to have been wilfully committed, and according to the authorities referred to, trespass only would lie in such a case. In trespass all the consequential damages may be recovered under a per quod, so that there is no necessity for departing from the appropriate form of action. The only remaining question is, whether this objection to the form of the action could be taken upon the trial. Leame v. Bray, 3 East, 593, is a direct authority for the position that the objection may be taken at. the trial; in that case, as in this, it was taken at the trial, and the plaintiff was nonsuited on that ground alone, and on the motion to set aside the nonsuit, no objection was started, that it was not ground of nonsuit if the action was in fact misconceived. The real objection is, that the evidence does not sustain the action, and that is in all cases ground of nonsuit. In Ogle
Motion for new trial denied.
