Barden v. Smith

7 Wis. 439

• Court: Wisconsin Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court,

Smith, J.

After the plaintiff had closed his evidence on the trial, in the court below, the defendant moved for a nonsuit, which was granted, on the ground that there was not sufficient evidence that the ditch (the cutting of which in the locus in quo was the tresspass complained of was cut on the land mentioned and set forth in the plaintiffs declaration.

The court below was doubtless in error in non-suiting the plaintiff for this reason. Although the surveys were not made with mathematical accuracy, yet the evidence that the ditch was cut on the land of the plaintiff, or land in his possession under a title which authorized the bringing of the action of trespass for its protection, and for injuries done to the premises, was sufficient to justify a verdict The proofs were sufficient to establish the locus in quo, in the absence oí counter proof. Under the notice of liberum tenementum, the defendant might have introduced proof on his behalf which would have compelled the plaintiff to prove by testimony what would be equivalent to a new assignment, had the defendant pleaded liberum tenementum. Nothing of this kind was attempted, and the evidence of the plaintiff of a breach of his close, or in other words, of the locus in quo, was sufficient to put the defendant upon his defence.

Judgment reversed with costs and cause remanded.