Cooley v. Penfield

1 Vt. 244

• Court: Supreme Court of Vermont
• Decided: February 15, 1828
• Status: Published

Opinion

TURNER, J.

delivered the opinion ofthe court. The case admits that the defendant has not entered, disseized, or been in possession of the land described in the plaintiff’s declaration. Now, in order to maintain an ejectment, there must be a disseizen or wrongful possession ; and this wrongful possession must exist at the commencement of the suit. The only complaint against the defendant, consists in his “ not removing the dam off from plaintiff’s land,” after notice. But, the plaintiff had the right to remove it, or such part of it as stood upon her own land ; but on what possible ground, can the plaintiff require the defendant to do it ? And why is he bound to do it more than any other person ? Were it ever pretended that the permission given to erect, or to usethedam, imposed an obligation on defendant to pullit down, on request, still ejectment is not the proper remedy for such breach of contract. His occupation of his own shop which stands ori'his own land, cannot be considered a wrongful possession of the plaintiff’s land, or any possession at all.

The authorities cited by the plaintiff relate only to the interests, ■a violation of which lays the foundation for this action; but they do not tend to show that the acts and omissions complained of in the present case subject the defendant to this action. Therefore, nonsuit must stand.