Davis v. Nash

32 Me. 411

• Court: Supreme Judicial Court of Maine
• Decided: April 15, 1851
• Status: Published

Opinion

Wells, J.

At the time the trespass was committed, the premises were in the possession of a tenant at will to the plaintiff. The fence, which was taken down, was erected by the direction of the plaintiff, and a portion of the boards was purchased by him. The fence erected by him would become a fixture, and being attached to the freehold was a part of it, as much so as a building upon the land constructed by him, and the taking of it down was an injury to the freehold.

In the case of Starr v. Jackson, 11 Mass. 519, it was decided, that an action of trespass, quare clausum, lies for the owner of land in the possession of his tenant at will, where the injury affects the permanent value of the property. That decision was made when the State of Maine was a part of the Commonwealth of Massachusetts, and is binding upon us as an authority in the same manner as our own decisions. And it is not perceived, that any practical inconvenience can arise by adhering to it. The case of Hingham v. Sprague, 15 Pick. 102, was decided upon the same principle.

There is nothing in the case of Little v. Palister, 3 Greenl. 6, opposed to the doctrine contained in Starr v. Jackson, for the acts done, and which constituted the alleged trespass, were not injurious to the freehold, and did not affect the rights of Little, the landlord.

The exceptions are overruled, and judgment on the verdict.