French v. Holt

51 Vt. 544

• Court: Supreme Court of Vermont
• Decided: February 15, 1879
• Status: Published

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.