Campbell, Cu. J.
Kennedy sued Gilbert before a Justice, for trespass quare clausum fregii, and the suit was removed to the Circuit Court for Lenawee County, on plea of title.
The declaration laid the trespass with a continuando on the 24th day of June, 1868, and on divers days and times between that day and the commencement of suit, August 4, 1868.
A general question was asked, whether Gilbert put any cattle on the premises during the summer of 1868. This was objected to unless confined within the period named, but the objection was overruled, and testimony was given, [15] showing the putting of cattle on the premises in the end of April, the driving them off by Kennedy, and their being put back again. A question was then asked, How long did they remain there ? This was objected to as not within the declaration, but the objection was overruled and.proof admitted of cattle put and found there in May, June, and July, and their continuance. It is urged as error that having laid the trespass with a continuando, the plaintiff could not prove any prior trespass, and then prove others either within or without the time, but must elect to prove one anterior, or confine himself within the time alleged.
It was assumed on the argument in reply to this objection, that there had already been a suit determined for the trespasses prior to June 24, and, therefore, it must be held that the evidence of the early trespasses was immaterial. No such fact appears in any responsible form on the record, and no such explanation was given for insisting on the proof, but it was allowed as proper under the issue, and was given as fully as would be required if the suit had been confined to the early transactions.
The rule has been settled for a long time, that under such a declaration the plaintiff must elect, and having proved a trespass before the period in the continuando, must go no further. The rule is that he is to be confined not merely to recovering damages for, but to proving no trespass but the one he elects. If he could prove them all, and then recover damages by election, it would give him an uneonscientious advantage, and one trespass would be used to aggravate another without any remedy to prevent it, for it would be impossible to keep a jury from making such allowances. The rule, at all events, has become too well settled to be questioned. And the evidence introduced was of aggravated and willful trespasses before June 24th, [16] of such a nature as to warrant considerable damages. When these had been proved, no attempt was made to explain the proof, as intended for any purpose but damages, if such explanation would have been available. There was then such an election as should have excluded further proof of subsequent grievances. — Saunders Pl. & Ev., “ Trespass,” 1094; Hume v. Oldacre, 1 Starkie R., 351; 1 Ch. Pl., 846 and notes; 2 Starkie’s Ev., 806; 2 Greenlf. Ev., § 624. The doctrine is very fully explained in Pierce v. Pickens, 16 Mass. R., 470.
The effect of deviating from this rule was shown by the admission of certain further testimony in regard to the amount of damage which was ostensibly to be confined to injuries done in the interval described, but which in fact was affected by previous acts. The plaintiff, when testifying, was asked: “What was the effect of having Gilbert’s cattle on there from the 24th of June to the 4th of August, on the feed and on the farm.” Instead of answering this directly, he replied: “At the 24th of June there was no feed on the place; a lot of sheep would have found hard picking. The feed was all fed and gnawed off, and trampled clean to the very roots.” This introduced proof of the effects of the previous trespasses; and the next question called out evidence of the damage resulting from this former mischief. Plaintiff was asked: “What was the damage to the farm, and to you, as possessor, done by those cattle of Gilbert’s from the 24th of June to August 4th, by reason of feeding off and trampling down the pasture, and thus destroying the feed.” To this he answered, “ At least one hundred dollars,” which was the full extent of the ad damnum clause in his declaration, and the amount found by the jury. However harmless or ambiguous this question might have been by itself, yet [17] when asked in connection with the previous answér, it seems plain that the trampling and destruction of feed previous to June 24th were directly taken into the account.
In connection with this proof of damages during the period of the continuando, there was evidence of the future effects of the continued trespasses beyond August 4th, and up to October 12th, when Kennedy turned off Gilbert’s cattle and resumed possession. It appeared by Kennedy’s testimony that he was not owner of the land, but held a lease in writing, and the Court, under exception, held he was not bound to prove his lease, but that he might prove his rights by parol. There was no testimony of any kind to show the terms or extent of the leasing.
Where a trespass consists of a single act, and the plaintiff proves his possession, he may usually rest there. But when he desires to recover damages for the future, he must show that his title gives him an interest in such damages, and he can recover no damages except such as affect his own rights. It is quite possible to divide up the interests so that the landlord may have the right to sue for one kind of trespass, and the tenant for another, at the same time. Thus in Cox v. Glue, 5 C. B., 588, where lands were subject to a right of pasturage during a part of the year, and during that time a trespass was committed by digging holes and setting posts in the soil, it was held the landlord could bring trespass for this, because the right of pasture gave no rights in the subsoil 5 but it’was also held that for a trespass in riding over the ground in a race, the landlord could not sue, as the possessory right in the surface was not in himself. Even a tenant is liable to trespass guare clausum to his landlord, if he destroys treeS or other things on the ground excepted in his lease.— Rolls v. Rock, Selwyn’s N. P., 1287. And wherever there is an .exclusive right,., trespass may be supported for an [18] injury during its continuance, though the party has not an -absolute or entire property in the soil; and though his interest is temporary. — Harker v. Birkbeck, 3 Burr., 1563; Wilson v. Mackreth, 3 Burr., 1824. It would be unjust and contrary to all principle to allow any one to recover for more than he has actually been injured. And in the authorities it will be found that every possible species of tenure has come under consideration, in determining the right to recover damages. See authorities collected in 2 Saunder’s Pl. and Ev., “ Trespass,” 1126 and seq.
We think the lease should have been put in evidence. In regard to damages, it appears to us that there has been some duplicating. If compelled to pay for the value of pasturage, it would seem unjust that a party should be further' compelled to pay for what would have grown had not the land been used for that purpose. When a person hires pasturage, he thereby pays for the right of doing whatever damage the use of that right involves. When ho does more than would be appropriate to that right, it would amount to waste, and ho should pay for that excess-in addition.
Free access — add to your briefcase to read the full text and ask questions with AI
Campbell, Cu. J.
Kennedy sued Gilbert before a Justice, for trespass quare clausum fregii, and the suit was removed to the Circuit Court for Lenawee County, on plea of title.
The declaration laid the trespass with a continuando on the 24th day of June, 1868, and on divers days and times between that day and the commencement of suit, August 4, 1868.
A general question was asked, whether Gilbert put any cattle on the premises during the summer of 1868. This was objected to unless confined within the period named, but the objection was overruled, and testimony was given, [15] showing the putting of cattle on the premises in the end of April, the driving them off by Kennedy, and their being put back again. A question was then asked, How long did they remain there ? This was objected to as not within the declaration, but the objection was overruled and.proof admitted of cattle put and found there in May, June, and July, and their continuance. It is urged as error that having laid the trespass with a continuando, the plaintiff could not prove any prior trespass, and then prove others either within or without the time, but must elect to prove one anterior, or confine himself within the time alleged.
It was assumed on the argument in reply to this objection, that there had already been a suit determined for the trespasses prior to June 24, and, therefore, it must be held that the evidence of the early trespasses was immaterial. No such fact appears in any responsible form on the record, and no such explanation was given for insisting on the proof, but it was allowed as proper under the issue, and was given as fully as would be required if the suit had been confined to the early transactions.
The rule has been settled for a long time, that under such a declaration the plaintiff must elect, and having proved a trespass before the period in the continuando, must go no further. The rule is that he is to be confined not merely to recovering damages for, but to proving no trespass but the one he elects. If he could prove them all, and then recover damages by election, it would give him an uneonscientious advantage, and one trespass would be used to aggravate another without any remedy to prevent it, for it would be impossible to keep a jury from making such allowances. The rule, at all events, has become too well settled to be questioned. And the evidence introduced was of aggravated and willful trespasses before June 24th, [16] of such a nature as to warrant considerable damages. When these had been proved, no attempt was made to explain the proof, as intended for any purpose but damages, if such explanation would have been available. There was then such an election as should have excluded further proof of subsequent grievances. — Saunders Pl. & Ev., “ Trespass,” 1094; Hume v. Oldacre, 1 Starkie R., 351; 1 Ch. Pl., 846 and notes; 2 Starkie’s Ev., 806; 2 Greenlf. Ev., § 624. The doctrine is very fully explained in Pierce v. Pickens, 16 Mass. R., 470.
The effect of deviating from this rule was shown by the admission of certain further testimony in regard to the amount of damage which was ostensibly to be confined to injuries done in the interval described, but which in fact was affected by previous acts. The plaintiff, when testifying, was asked: “What was the effect of having Gilbert’s cattle on there from the 24th of June to the 4th of August, on the feed and on the farm.” Instead of answering this directly, he replied: “At the 24th of June there was no feed on the place; a lot of sheep would have found hard picking. The feed was all fed and gnawed off, and trampled clean to the very roots.” This introduced proof of the effects of the previous trespasses; and the next question called out evidence of the damage resulting from this former mischief. Plaintiff was asked: “What was the damage to the farm, and to you, as possessor, done by those cattle of Gilbert’s from the 24th of June to August 4th, by reason of feeding off and trampling down the pasture, and thus destroying the feed.” To this he answered, “ At least one hundred dollars,” which was the full extent of the ad damnum clause in his declaration, and the amount found by the jury. However harmless or ambiguous this question might have been by itself, yet [17] when asked in connection with the previous answér, it seems plain that the trampling and destruction of feed previous to June 24th were directly taken into the account.
In connection with this proof of damages during the period of the continuando, there was evidence of the future effects of the continued trespasses beyond August 4th, and up to October 12th, when Kennedy turned off Gilbert’s cattle and resumed possession. It appeared by Kennedy’s testimony that he was not owner of the land, but held a lease in writing, and the Court, under exception, held he was not bound to prove his lease, but that he might prove his rights by parol. There was no testimony of any kind to show the terms or extent of the leasing.
Where a trespass consists of a single act, and the plaintiff proves his possession, he may usually rest there. But when he desires to recover damages for the future, he must show that his title gives him an interest in such damages, and he can recover no damages except such as affect his own rights. It is quite possible to divide up the interests so that the landlord may have the right to sue for one kind of trespass, and the tenant for another, at the same time. Thus in Cox v. Glue, 5 C. B., 588, where lands were subject to a right of pasturage during a part of the year, and during that time a trespass was committed by digging holes and setting posts in the soil, it was held the landlord could bring trespass for this, because the right of pasture gave no rights in the subsoil 5 but it’was also held that for a trespass in riding over the ground in a race, the landlord could not sue, as the possessory right in the surface was not in himself. Even a tenant is liable to trespass guare clausum to his landlord, if he destroys treeS or other things on the ground excepted in his lease.— Rolls v. Rock, Selwyn’s N. P., 1287. And wherever there is an .exclusive right,., trespass may be supported for an [18] injury during its continuance, though the party has not an -absolute or entire property in the soil; and though his interest is temporary. — Harker v. Birkbeck, 3 Burr., 1563; Wilson v. Mackreth, 3 Burr., 1824. It would be unjust and contrary to all principle to allow any one to recover for more than he has actually been injured. And in the authorities it will be found that every possible species of tenure has come under consideration, in determining the right to recover damages. See authorities collected in 2 Saunder’s Pl. and Ev., “ Trespass,” 1126 and seq.
We think the lease should have been put in evidence. In regard to damages, it appears to us that there has been some duplicating. If compelled to pay for the value of pasturage, it would seem unjust that a party should be further' compelled to pay for what would have grown had not the land been used for that purpose. When a person hires pasturage, he thereby pays for the right of doing whatever damage the use of that right involves. When ho does more than would be appropriate to that right, it would amount to waste, and ho should pay for that excess-in addition.
If all the damage done to the land after June 24th would have been done had any one else occupied the land for keeping stock on it, then the defendant below was only responsible for its fair value for use and occupation, and not for any natural- results for which any other occupant would not have -been liable. The testimony all tended to prove that the occupation would have been valuable to plaintiff for similar purposes, and that the injury done previous to June 24th would not have prevented this use. If so, it must be assumed that the real- permanent injury had all been really committed prior to June 24th, and that damages had been or could be recovered in a separate action on that basis. In other words, if the owner of the [19] land would have used it for cattle had he resumed possession on June 24th, his animals, according to the laws of nature, could not be expected to be more careful or economical than those of any one else, and would have done just as much mischief. If it would not have .been used, and was utterly unfit for use, then there should be no damages for its use, but only for further spoiling it. But the case shows plainly that its value was proven for use, and damages were given for its use, and for the natural result 5f that use in addition.
As the question of costs may come up hereafter, it is proper to refer to the more important questions raised.
If witnesses are made to attend in good faith, and there is reasonable proof of their necessity, the fact that they are not called, will not prevent taxation for their attendance, where the party had reason from the state of the pleadings to believe he required them. It is not enough that they are material, for it would not be proper to accumulate witnesses too much on the same point, There should be an allowance for all that were actually necessary, as the case appeared while they were retained, if they were called no sooner and kept no longer than the apparent necessity existed. — Adamson v. Noel, 2 Chitty R., 200; Anonymous, 2 Chitty R., 200; Bagnall v. Undertoood, 11 Price, 510. The affidavits in the present case were too vague. The necessity, as well as materialit}-, must clearly appear from the affidavits.
We also think that "double costs ” under the statute, where there is nothing to qualify the phrase, must be construed, according to the old rule, as meaning single costs, and an addition of one-half. As they belong under our statutes to the party, and not to the officers and witnesses, the statute is óf a penal- character, and should receivo no larger construction than it fairly requires. There is no [20] statute in England defining how double costs shall be computed, and yet, while damages are actually doubled costs are increased in the manner mentioned in all cases where double costs are given by statute. The rule appears to be ancient, and has not been questioned. — Bacon’s Abridgment, “ Costs,” subd. “ Double Costs;" 2 Tidd’s Pr., 987-8; Deacon v. Morris, 2 Chitty’s R., 137 and notes; Staniland v. Ludlam, 4 B. & C., 889; Also, note to Milne v. Maclean, 1 C. & P., 17.
In Patchin v. Parkhurst, 9 Wend. R., 443, it is held that the New York statute, from which ours is copied, has this construction. It is there intimated that a different rule prevailed earlier, but there is no trace of it in the decisions. There is also a practical difficulty in construing it otherwise. Prior to the N. Y. Revised Statutes, when costs were doubled, they did not belong to the party.— McFarland v. Crary, 8 Cow., 258. The clause in our statute which gives double costs to the party himself (2 C. L., § 5606) would not apply to the costs and one-half in addition mentioned in § 5604, if they are not double costs, but would still leave them the property of the attorney. It is not to be supposed that the introduction of these clauses in such close juxtaposition was unintentional. How this anomalous language orginated we are not informed, but its construction seems well settled, and we think it should now be adhered to.
Judgment must be reversed with costs, and a new trial granted.