Arden v. Kermit

1 Ant. N.P. Cas. 112

• Court: New York Supreme Court
• Decided: July 1, 1808
• Status: Published

Opinion

Thompson, J.

It is competent to the plaintiff to go into evidence, under his continuando, in this case. This is no more a case of disseisin than the mere entry on the premises of another, and exercising ownership there by cutting down his trees, would be. The continuando is well laid in the declaration, and the plaintiff may go into evidence under it.

(1)

In proving his damages, under the continuando, the plaintiff claimed all the wharfage, received by the defendant, from vessels which had been attached to that part of his wharf encroaching on the plaintiff.

Thompson, J. This cannot be the rule of damages; you can only recover the current value of the part proved to be in the defendant’s possession.

The plaintiff having closed his testimony, the defendant’s counsel moved for a non-suit. They contended, that, to support this action, the plaintiff must either show an actual possession, or a documentary title, from which a legal possession might be inferred. That, as he had shown no actual possession, be must fail in his action, if his documentary title should prove defective. To show a defect in that title, they contended that, inasmuch as the deed in trust, from the corporation to Oliver Delancey, contained no words of perpetuity, it conveyed a life-estate only in the premises, which, therefore, on the death of the trustee, reverted to the corporation; hence, therefore, the heirs of Sir Peter Warren had nothing in the premises when the fine was levied, and could not be tenants to the preecipe; the fine, therefore, passed nothing to the conusee, the conusor having no interest in the premises. 2 Bl. Com. 360; 5 Rep. 123. And that this defect might be taken advantage of by averment, admitting the existence of the deed, but avoiding it for the want of interest in the parties. 1 Rev. Laws, 73; 3 Rep. 88; Cro. Eliz. 471; 3 Co. 8, a.; 3 Co. 80; Plow. Com. 49, a.

Thompson, J. An actual possessio pedis cannot be shown in this case. But sufficient possession, for the purposes of this action, has been shown by the production of Edgar’s deed to the plaintiff, and the proof of payment of the quit-rent. The plaintiff need not have proceeded further with the documentary proofs.(2)

The defendant then offered evidence of surveys, to show that there was no encroachment on his part.

It appeared in evidence, however, that the defendant’s wharf had been laid on a very muddy bottom; and Thompson, J., in charging the jury, was of opinion that there had been an encroachment, which had been occasioned by the sliding of the dock, which was a trespass for which the plaintiff was, in strictness of law, entitled to damages.

The defendant’s counsel requested the court to charge the jury, that if they believed the encroachment had been occasioned by the mere sliding of the defendant’s dock, they should find for the defendant, because the plaintiff should have brought his special action on the case, for the consequential damages, and not trespass.

Thompson, J. You have precluded yourselves from this objection, by setting up your claim to the locus in quo.

Verdict for the defendant.

Hoffman, Emmet and B. A. Ogden, for the plaintiff.

Golden and Wells, for the defendant.

The rule, contended for by the defendant’s counsel, seems to be correct in cases of actual disseisin; for, in such cases. Coke says, “The disseisee shall have an action of trespass against the disseisor, and recover his damages for the first entry, without any regress; but, after regress, he may have an action of trespass with a continuando, and recover as well for ail the mesne occupation, as for the first entry. Co. Litt. 257, a.; vide etiam, 2 Roll. 653; I. 50. But what shall be said to be a disseisin, has been of late a matter of considerable discussion; all the books seem to agree, that the ancient learning, on this subject, has become abstruse. 6 Johns. 215. A mere entry upon another, is no disseisin, unless it be accompanied with expulsion, or ouster from the freehold. Disseisin is an estate gained by wrong and injury, and therein it differs from dispossession, which may be by right or wrong. Per Kent, C. J., 6 Johns. 215. A bare entry on another, without an expulsion, makes such a seisin only, that the law will adjudge him in possession, that has the right. 1 Salk. 246. This being, therefore, a mere trespass, and not a disseisin, a re-entry to enable the plaintiff to bring trespass with a continuando, was unnecessary: the continuation of the possession being a continuation of the trespass. Lutw. 312.

Any possession is sufficient to maintain trespass, quart clausum fregit, against a wrong doer. Graham v. Peat, 1 East, 244. The action of trespass being a possessory action, it is a general rule, that no other than the person who has title to the freehold, can compel the party in possession to show his own title to that possession. Tt is not enough for a wrong doer, therefore, to show a title in a third person; he must also show authority from him, to make the entry complained ofj before the plaintiff can be driven to produce his title in evidence. In this case, therefore, if the defendant could have proved a license, under the corporation of the city of New York, to enter on the locus in quo, the court would have been compelled to decide on the sufficiency of the plaintiff’s title. So also, if the defendant had proved a title in himself, or in any third person, with license from such third person. Argent v. Durrant, 8 D. & E. 405; Chambers v. Donaldson, 11 East, 65. And this evidence would have been admissible under the pleadings in this case; for, although Lord Kenyon would not receive this defence under the general issue, in the ease of Philpot v. Holmes, (Peake, 67,) the law of that case has been since expressly overruled in the case of Argent v. Durrant, above cited.