Fitzpatrick v. Gebhart

7 Kan. 35

• Court: Supreme Court of Kansas
• Decided: January 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action for injuries done to and upon certain real estate. The petition in the court below consisted of two counts, and set up two causes of action: First, that the defendant, (who is plaintiff in error,) carried away and destroyed certain rails, pieces of wood, etc., from the land of the plaintiff, (defendant in error;) Second, that the defendant injured a certain dwelling-house of the plaintiff, situated on said land. The action was tried by a jury, and the jury found a verdict on both counts of the petition in favor of the plaintiff below, and against the defendant.

1. /ofSoyTwhea object. I. Almost all the rulings of the court below, from first to last, are indiscriminately assigned for error; but as to many of the assignments the rulings are so obviously correct that we shall not notice them in this opinion. No question was raised in the court below as to the sufficiency of the petition until after the trial had commenced; and then the defendant raised the question of the sufficiency of the second count by objecting to the introduction of any evidence under it, claiming tbat it did not state facts sufficient to constitute a cause of action. It is true that said second count is not very artistically drawn; it is not as formal and definite in some of its statements as- it should be. It is probable that it would not have been held sufficient on a motion of the defendant below to require the plaintiff to make it more definite and certain, if such a motion had been made. But we think it states facts sufficient to constitute a cause of action; and however informal, indefinite and uncertain it may be in some of its statements, it must be held sufficient when the objection is made, as it was made in this case.

2. Petition of neelfnot allege possession, 3 — he can recover for iniSítheíll610’ not. II. The principal objection urged against said count' is, that it does not state that the plaintiff’ was in possession of the land, upon which the injuries are alleged to have been committed. This is not necessary. It J never was the law that the owner of property without a remedy for injuries done to it unless he was, at the time of their commission, in the actual or constructive possession of the property. In any case, whether he was in possession or not, he had his remedy. Ubi jus, ibi remedium. If he was in possession he had his action of trespass quare clausum fregit; if he was not in possession, he had his action on * x the case. In the first action he recovered for injuries to his possession, and incidentally tor injuries to his inheritance; in the second action here-covered for injuries to his inheritance only. But the first action was not confined to owners of land merely; it belonged to any person in possession. ■ It was a mere possessory action, the gist of which was the injury to the possession; and ownership formed no element or ingredient thereof. If the land was owned by one person and was iii the possession of another, each had his action. The first had his action on the ease, and recovered for injuries to his inheritance; the second had his action of' trespass guare clausum fregit, and recovered for injuries to his possession. But all these old forms of action are now abolished. "We have no action of trespass quare clausum; nor of case. We have but one form of action,, which is called a civil action. Gen. Stat., 631, Civil Code, § 10; and under this form all civil actions must now be prosecuted. Even waste, (and the plaintiff' in-error seems to claim that this action should have been an action of waste,) must now be prosecuted under this form: (Gen. Stat, 765, §685.) But the change in the forms of action has not in the least affected the substantial rights of parties. Wherever a party had a remedy under the old forms of action, either at law or in equity, for any injury to his property, he now has a remedy under our code of practice for such injury; and all that is necessary for him now to do, in order to state a good cause of action, is to state “ the facts constituting his cause of action in ordinary and concise language, and without repetition; ” (Gen. Stat., 647, .§ 87;) and he may always recover for just such injuries as he states in his petition, (provided he proves them,) and for no more. If he states that he is the owner and is also in possession of’ the property, he may recover for injuries to both the land and to his possession; but when he states that he is the-owner of the land, and does not state that he is in-possession, he can recover for injuries to the land only. And his petition is not- insufficient in such a case, because of his omission to state that he is in possession. In this case, the plaintiff did not attempt to prove under thesfecond count of his petition, any injuries except such as he had alleged in said second count, and except such as-pertained to liis house, which was a part of his real estate.

4. amekmibxt: nsIII. The court properly allowed the plaintiff below to amend the "prayer of his petition, and also properly allowed the amendment to be made 'bj-interlineation. Neither was it an abuse of judicial discretion. The amendment was short, and scarcely, if at all, material. Amendments of pleadings may be made in three ways, subject to the discretion of the court; first, by interlineation; second, by.writing the amendment, and the amendment only, on a separate piece of paper, and referring to the original; third,, by rewriting the ■original, and incorporating the amendment in it.

•vylien admissibieIV. During the trial the court below allowed the plaintiff to introduce in evidence the record of a judgment, together with .the papers connected therewith, to-wit: the notice to abandon the premises, the summons, the complaint, and the affidavit, to prove that the plaintiff was the owner of the land. This judgment was between the same parties and concerning the same land, and was rendered by a justice of the peace, in a proceeding under chap. 96, Gen. Stat., {page 952. * ) The court did not err in permitting this evidence to go'to the jury. It was prima facie evidénce that the plaintiff owned the land, and therefore was .proper evidence. But for the purpose of this ease it makes no difference ■ whether said evidence was proper evidence or not, for the defendant himself, afterward and •during the trial, admitted, and introduced evidence to prove the very same thing, that is, that the plaintiff was the owner of the land.

Descending to small points, the defendant below claims that the court erred in permitting certain evidence relating to “ stakes,” and to “ shingles,” to go to the jury. These stakes, if we can understand the evidence, were pieces of wood or short rails seven or eight feet long, and were therefore undoubtedly covered by the first count of the plaintiff’s petition, and were also covered by the statute under which the first count' was framed; (ch. 113, Gen. Stat., 1095;) and hence the evidence was proper. The evidence is ’clear that the shingles were a part of the house, and we think the circumstances Bhow that, they were a part of the roof; if so, they were undoubtedly covered by the second count of the petition. But -the evidence relating to the shingles might properly have been admitted in evidence for another purpose, as a circumstance tending to prove that it was the defendant, and not some one else, that committed the injuries to the house. The defendant denied the commission of said injuries,.and of course it devolved upon the plaintiff to-prove them; and from the nature of the transaction, having been done after night, and in the dark, he had ta prove them almost entirely by circumstantial evidence. The last time these shingles were seen before the injuries-were committed they were on the house; the first time they were seen afterwards, they were on the defendant’s-premises.

6. damages, eituVdOTOh!" 113, Gpu. Stat. « isos. . 7. Statutes, how construed. V. The next question for us to consider is,, whether the plaintiff’ had a right to recover on the first count of his petition. In the discussion of this question we must- assume that, at the time of the ^ ... commission of the alleged injuries the plaintiff was the owner of the land, but not in possession; and that the defendant was in possession of the land as-the tenant of the plaintiff, but had no color of authority to commit the acts complained of. Said count is drawn under the statute entitled, “ An act to prevent certain trespasses,” (Gen. Stat., 1095.) The defendant claims that the cause of action provided for in this statute is simply the old action of trespass, quare clausum fregit, with increased damages. The only reason that we can .perceive for such a claim is, that it uses the word, “ trespasses,” in the title of the act; but this is not sufficient, as we think, to prove that the statutory action is simply the old action of trespass quare clausum, for the word M trespass,” when used alone, seldom, if ever, means trespass quare clausum fregit; and it generally has a much broader and more extensive signification. A party in possession, a mere trespasser himself, without any claim of ownership to the land, could at common law maintain trespass quare clausum fregit, against a mere wrong-doer who disturbed his possession; and can it be possible that the legislature intended by this act to give to such a person treble the value of timber and minerals, etc., taken fr.om land in which he has no interest, simply because he is i-n possession of the land ? "Will it be claimed that he has any interest in the timber or minerals, when he has ■no interest in the land from which they are taken ? It is to the owner of the land that the statute in express words gives these treble damages, and not to a person who is merely in possession. But must the owner of the ■land be in possession of the same in order to recover? There is "nothing in the statute that requires that he -should be-; and what is left out of the statute by the legislature is not to govern. It is certainly as much within the scope of the legislative authority to prescribe that the owner of the land may recover treble damages for injuries done to his property when he is not in possession of his land as when he is; and the fact that tbe statute does not mention or even hint at possession as being a prerequisite to the commencement or maintenance of the action to recover the damages it authorizes, is clear proof that there wasno intention to require any such condition precedent. The true way for courts to ascertain the legislative intention is to observe and be guided ° py thuB language of the statute, and if this be clear and free from ambiguity, there is nothing left for interpretation; for when the act is conceived in clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents. To go elsewhere to obtain something to enlarge its meaning is to endeavor to elude it. In construing this statute, if the court should adopt the theory of the defendant below, it would assume the extraordinary power of supplying a supposed omission, or rather of injecting into the statute a new term or provision. Such is not the office of interpretation. The office of interpretation is not to put a sense into language, but to ascertain the sense already existing therein.

The judgment of the court below is affirmed.

Kingman, C. J., concurring. Brewer, J., did not sit in the case.