Harris v. Gillingham

6 N.H. 9

• Court: Superior Court of New Hampshire
• Decided: February 15, 1832
• Status: Published

Opinion

By the court.

In order to determine, whether the in structions, given to the jury in this case, were correct, it is necessary to determine, what were the rights of the plaintiff in the house mentioned in the declaration, at the time the defendants entered.

It may be conceded, that when she had erected the house, it was her property, although erected upon the land of another person. And a license to erect the house upon the land, may, well enough, be construed to be a license to occupy it, at least during the pleasure of the owner of the land, and perhaps to remove it from the land, when she chose so to do. 2 East, 88, Penton v. Robert; 4 Mass. Rep. 514, Wills v. Bannister.

These are all the rights she appears ever to have had with respect to the house.

When the plaintiff conveyed the house to her brother, she ceased to have any right in it, unless she had the right to occupy it, by the permission of her brother, and of the owner of the land.

But when Ames conveyed the land to the defendant, D. Gillingham, the license to occupy the house, upon the land, which the plaintiff may have derived, by implication, from the license to erect it, expired. 11 Mass. Rep. 533, Cook v. Stearns.

At all events, when D. Gillingham requested her to leave the house, she ceased to have any right to remain upon the land. The only right, which the owner of the house could have claimed, must have been the right to remove it ; not to occupy it upon the land.

D. Gillingham had a right, then, to enter and turn the plaintiff out of the house;

This action is trespass quare clomum fregit, and cannot be maintained without showing an unlawful entry into the house. 3 D. & E. 292, Taylor v. Cole; 4 Pick. 239, Ropps. v. Baker; 3 N. H. Rep. 511, Kingsbury v. Pond.

The entry of these defendants was, without question, at first, lawful. And we are of opinion that, admitting the defendants had no right todo to the house what they in fact did, the injury to the house could not make them trespassers, ab initio, with respect to this plaintiff, because she was not the owner of the house. And we are also of opinion that the disturbance done to her posses-eion, by putting the house in a situation which compelled her to leave it, did not make them trespassers, ab in-ilio, because she had no right to be there against the will of D. Gillingham, the owner of the land. 7 Cowen, 229, Erwin v. Olmsted; 1 Johns. Cases, 123, Wilde v. Contillon; 4 Johns. 150, Hyatt, v. Wood; 13 Johns. 235, Ives v. Ives.

We are, therefore, of opinion, that the jury were misdirected, and that the verdict must be set aside, and

J1 new trial granted.