French v. Holt

51 Vt. 544

Opinion

The opinion of the court was delivered by

Redfield, J.

This action is founded upon section 7, c. 24, Gen. Sts. The plaintiff seeks to recover a penalty of the defendant for tearing down gates and bars on a pent road. In order to recover the penalty, the plaintiff must prove that “ he is interested in the lands” exposed to injury by the removing of the bars and gates. The true limits of a justice’s jurisdiction “ where the title to land is concerned,” has been carefully defined by the courts of this State. In Jakeway v. Barrett, 38 Vt. 316, Poland, C. J., says: “ Whenever the declaration is of such a character that, under the general issue, or any other plea which merely puts the plaintiff to the necessity- of proving the declaration, he is bound either to prove or disprove title to land, the justice has no jurisdiction.” In an action on the case for obstructing a water course, Haven v. Needham, 20 Vt. 183, also for erecting a nuisance too near the plaintiff’s dwelling, Whitney v. Bowen, 11 Vt. 250, jurisdiction was denied to a justice. Under this declaration, if the general issue be pleaded, the plaintiff must prove that he has such interest in lands exposed to injury as the statute requires; without such proof, his action fails. And we think this case comes within the principle adjudged in the cases referred to; and that the case was properly dismissed.

It is doubtless true that proof of the peaceable possession of premises would be sufficient prima-facie evidence of title, as against a stranger ; but; in such case, the plaintiff may be without title or interest in the premises; and I have known such action instituted against the actual owner of the premises exposed to injury.

Judgment affirmed.