Faulkner v. Rocket

Supreme Court of Rhode Island

Faulkner v. Rocket

80 A. 380, 33 R.I. 152, 1911 R.I. LEXIS 116

CourtSupreme Court of Rhode Island

DecidedJune 27, 1911

StatusPublished

Cited by1 cases

This text of 80 A. 380 (Faulkner v. Rocket) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Faulkner v. Rocket, 80 A. 380, 33 R.I. 152, 1911 R.I. LEXIS 116 (R.I. 1911).

Pincite

Opinion

*155 Parkhurst, J.

This is an action of trespass quare clausum fregit brought by the plaintiffs against the defendants; tried before the Presiding Justice of the Superior Court, June 7, 1910, without a jury; and now before this court on the plaintiffs’ bill of exceptions to certain rulings of said justice at said trial and to the decision given by him for the defendants at the close of the plaintiffs’ testimony in said case.

The state of the pleadings is as follows: The plaintiffs, William J. Faulkner and Hannah M. Faulkner, his wife, in their declaration alleged themselves to be, on March 14th, 1903, seized and possessed in fee simple, as tenants in common, of a certain lot of land in Warren, in this State, describing the same by metes and bounds, and that the defendants, Edward Rocket and Bridget Rocket, on said date and at other times between said date and the date of the plaintiffs’ writ (October 8, 1903), with force and arms broke and entered the plaintiffs’ said close and committed sundry trespasses thereon.

The defendants pleaded:

First. The general issue.

Second. That a public highway existed along the northerly part of said close and that the alleged trespasses were acts lawfully committed by the defendants upon that part of said close over which said highway existed in the proper use by them thereof.

Third. That a private way, fifty feet in width, existed along the northerly part of said close (called Taylor street), the southerly line thereof being two hundred feet north from the northerly line of Vernon Street (named in said declaration), which by grant said defendant Bridget Rocket, as owner in fee simple of land bounding southerly on said way, and her husband, said Edward Rocket, had right to use, stating particularly from and through whom they claimed this right, and that the alleged trespasses were acts lawfully committed by the defendants upon that part of *156 said close over which said private way existed in the proper use by them thereof.

Fourth. Liberum tenementum of the defendant Bridget Rocket in said close, defendant Edward Rocket justifying as her servant thereon.

The plaintiffs joined issue on the first plea; traversed the second and fourth pleas; and to the third plea replied:

First. Traversing it.

Second. That the plaintiffs and all others from whom they derive title, had been for more than twenty years before said March 14, A. D. 1903 (the date of the first trespass by the defendants), in the uninterrupted, quiet, peaceable and actual seisin and possession of the entire close, as specifically set forth, bounded and described in said declaration, claiming the same as their proper, sole and rightful estate in fee simple.

Third. That said defendant, Bridget Rocket, and her predecessors in title to her said land, for more than twenty years before said March 14, A. D. 1903, had renounced and abandoned her and their easement in said private way, and her and their right to use the same in manner and for the purposes alleged in defendants’ said third plea.

The defendants made rejoinder to the second and third repli cations to the third plea by traversing the same.

By agreement of counsel, matters alleged in the declaration and not specially answered by the special pleas were permitted to be shown under the general issue with the same effect as if pleaded.

The effect of the pleadings as above set forth, was as follows: The declaration alleges seisin in fee simple, as well as possession, by the plaintiffs of the land described by metes and bounds therein.

(1) Trespass quare clausum fregit does not try the title of the plaintiffs in the land; the gist of the action is the injury done to their possession; as was said in Lavin v. Dodge, 30 R. I. 8, at p. 11: “The gist of this action is the injury to the possession. 'In trespass and ejectment, which is an *157 action distinctively to try title, upon a plea of the general issue the plaintiff must prove title as a sine qua non of maintaining an action. In trespass quare clausum, posses-' sion alone is sufficient to maintain the action unless the defendant defends upon the ground that the title was in him and hence that there was no trespass, in which case the defendant must Ipecially plead title in himself, or liberum tenementum, as it is called.’ Schæffer v. Brown, 23 R. I. 364.

" 'The action being trespass quare clausum, the only issues were the possession of the plaintiff and the acts of trespass by the defendant. . . . The question of title in such an action is only put in issue upon the setting up of title in the defendant.’ Sayles v. Mitchell, 22 R. I. 238.

"When the defendant pleaded liberum tenementum there can be no question, under the authorities, but that he admitted the possession of the plaintiff and the committing of the acts complained of, and assumed the burden of establishing his title by a preponderance of the testimony. Carpenter v. Logee, 24 R. I. 383. See also Wilbur v. Peckham, 22 R. I. 284; City of Providence v. Adams, 10 R. I. 184.” See also 2 Greenleaf on Ev. §§ 613, 626; I Chitty Pl. pp. 195 et seq.

The plea of liberum tenementum, which was traversed, admitted the plaintiffs’ possession and the commission of the acts complained of, but claimed the land to belong to the defendant, Bridget Rocket. Greenleaf’s Evidence, V. 2, sec. 626; Bavin v. Dodge, supra, and cases cited.

The plea of a public highway, which was traversed, also admitted the plaintiffs’ possession and the commission of said acts, but justified the same as acts necessary for the proper use of said highway.

In both the last named pleas the burden of proof was upon the defendants.

The plea of a private way for the defendant Bridget Rocket also admitted the plaintiffs’ possession and the com *158 mission of the said acts, but justified the same as acts necessary for the proper use of said private way.

The plaintiffs’ traverse of the same put the burden of proof upon the defendants.

(2) The plaintiffs’ replications setting up “adverse possession” and “abandonment” denied the existence of such right of way for the defendants, but put the burden of proof of such “adverse possession” and “abandonment” upon the plaintiffs.

(3) As was held in the case of Lavin v. Dodge, supra, the plea of general issue in this case is to be disregarded.

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