Bennett v. Clemence

88 Mass. 10

Opinion

Chapman, J.

1. The first exception must be overruled. This being an action of tort, for breaking and entering the plaintiff’s close, he being a witness on the stand and competent to testify, and the fact of his own prior use and occupation being pertinent as tending to establish his title, it was proper for his counsel who was conducting the cause to ask him questions on that point. The plaintiff was asked “ how long he had been in the use and occupation of the locus.” It is objected in argument that this question was leading ; but the objection does not appear to have been made at the trial, and therefore cannot be urged here.

• 2. The second exception must be sustained. The act complained of by the plaintiff was the cutting down of a part of an unfinished building. The question which was allowed to be put and answered was, what the building would rent for annually when finished according to the plan. If the plaintiff had a right to recover damages, it was for the injury done to his building as it then was; and an opinion as to what it would rent for in a condition of things which did not exist would be sanctioned by no rule of evidence, and would tend to mislead the jury.

3. The third exception must be sustained, and for the same reason as the second, the question being what the building would cost when finished.

4. The fourth exception must be overruled. The plaintiff was on the stand, and had testified as to land conveyed by two deeds, which were read. The defendants’ counsel asked him if one of the deeds referred to conveyed any greater right than another of the deeds referred to. This was a question of law, to be determined by the legal construction of the instruments, and not by the oral testimony of the witness.

5. The fifth exception must be sustained. The important point decided by the judge was, that the proceedings of the county commissioners, locating the highway to the bridge, being an alteration of the town way which had before existed to the river, had the effect to discontinue that part of the old way for which the new way was substituted, not only as a public way, but for all the uses which the public had acquired in any part of it, including that of a public landing. It is, in general, true that an alteration of a public way has the effect to discontinue that part of the old way for which the new one is substituted. But no authority has ever been given to the county commissioners to discontinue a public landing. Such landings have existed and been recognized by law from the earliest existence of the state. They are recognized in Gen. Sts. c. 46, § 1, and this is but a reenactment of earlier statutes. The court are of opinion that the landing place in question was not discontinued by the proceedings of the county commissioners. And if the way leading to it was necessary to furnish access to it, or can reasonably be considered as appurtenant to it, as a landing place for the use of the public, the way cannot be regarded as discontinued.

Footnotes

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6. All the evidence offered, which tended to prove the existence of a public landing, including the acts of the town of Dracut, should have been admitted.

7. Whether the defendant Brown had a private right of way over the premises, under the deeds referred to, can only be ascertained by an examination of the deeds. And as they are not among the papers furnished to the court, this question cannot be decided. It may not be material.

8. The only remaining question that appears to be important relates to the rights of the parties as tenants in common. The bill of exceptions does not clearly state the situation of the plaintiff’s building. But by the plan the principal part of the building appears to have stood upon the land of the plaintiff adjoining the locus, of which the defendant Brown claims to be tenant in common with the plaintiff. A small portion of it was placed on the locus, but not enough to be used separately with any advantage to the occupant. Such an exclusive appropriation of a part of the land to his own use, by the erection of a permanent structure, would be evidence of an ouster of his co-tenant. Such an ouster is a trespass, for which an action of trespass may be maintained. Stedman v. Smith, 8 El. & Bl. 1. Erwin v. Olmsted, 7 Cow. 229. It has been said that an action of trespass quare clausum cannot be maintained by one tenant in common against another. The objection is merely technical. It is fully discussed in Maddox v. Goddard, 15 Maine, 218, and it is there held that it will lie for the destruction of a mill situated on the common property, and the cases above referred to establish the point that it will lie for an ouster. An exclusive occupation of a part of the land for a temporary purpose, such as piling boards and lumber, not being an ouster, does not make the tenant liable to any action. Keay v. Goodwin, 16 Mass. 1.

If Brown might°have maintained trespass for the illegal erection of a part of the building on the common land, it would seem that he might resort to the more speedy‘remedy of removing it. This was taken for granted in Stedman v. Smith, ubi supra. Erie, J. interrupted the plaintiff’s counsel by saying, “ You can take the roof off,” referring to the structure which was the subject of the action. To this it was replied, “ In cases of a trespass, the party trespassed upon ordinarily has some such remedy in his own hands; but that does not prevent the injury from being a trespass.” This view of the matter seems to be conformable to elementary principles. Almy v. Grinnell, 12 Met. 53, is a strong case, where the defendant was held to be justifiable in cutting down and removing a structure erected without right on his land. The fact that the trespasser is a tenant in common makes no difference in principle. If they were tenants in common of a way, it would not be doubted that if one erected a building upon it, the other might remove the building. A commoner may abate walls, gates, hedges, &c., erected by the lord, so as to deprive him of part of his common. Potter v. North, 1 Saund. 353, note 2. A tenant in common may reenter into the part from which he has been ousted, provided he can do so without a forcible entry or a breach of the peace. 1 Chit. Gen. Pr. 375. But he can have no right to use the property of his co-tenant which he finds there; and he must have the right to remove it, in order that he may enjoy his rights, unless it is to be regarded as. common property. It would be contrary to principle to hold that a co-tenant might thus have property forced upon him. And no mischief can arise from the doctrine that the tenant who desires to erect a permanent structure on such land must obtain partition.

Exceptions sustained.

For the authorities as to public landing places, see 9 Gray, 527.