Cushing v. Fenn

63 Vt. 106

• Court: Supreme Court of Vermont
• Decided: October 15, 1890
• Status: Published

Opinion

Tlie opinion of the court was delivered by

ROWELL, J.

This is a justice’s ejectment against a tenant holding over.

The declaration describes the demanded premises as “the dwelling-house and out-buildings and a small piece of land adjoining the same on the northerly part of Lot No. 12,” etc. Defendant set the case “Not for the jury,” and on failure to show cause for a continuance, judgment passed against him, and the case went to the clerk for -the assessment of damages, and comes up on exceptions to his allowance of rent.

The defendant concedes the correctness of its allowance for the buildings and the garden, but questions the correctness of its allowance for the pasture, which was connected with the garden, and with it and the buildings was a part of the farm occupied by the defendant as lessee the year before.

The description of the land' in the declaration as “ a small piece of land adjoining ” the buildings, is too uncertain and indefinite in pleading to be taken to embrace the pasture as a part of the demanded premises, and so it cannot be said to have been adjudged that the defendant was holding that over. It follows, therefore, that it was error to allow rent for it.

The defendant moves for an apportionment of costs. But the amount now recovered by the plaintiff is so near the amount lie recovered before the justice that we are not inclined to apportion.

Judgment reversed, and judgment for the plaintiff for $1J¡- with interest thereon from the commencement of suit.