Passwaters v. Warren

1 Del. Cas. 37

• Court: Delaware Court of Common Pleas
• Decided: November 15, 1794
• Status: Published

Opinion

Bassett, C. J.

Gentlemen, this is an action of trespass. I shall think it my duty to declare the law to you; as to the facts, I leave them to you. There seems to be a contrariety of evidence; you will give the credit where the witnesses deserve it. As to the law, gentlemen, this is an action of trespass vi and armis; it is necessary for every plaintiff in such action to prove two of three things. He must either prove possession or general property (I suppose the judge meant to say “and a trespass”). If you think the plaintiff had possession of the lands previous to the commencement of his action, he must prove a trespass either in the whole or in some part of what he has declared for, but proof of the cutting of one tree is sufficient, and he must have damages accordingly. Plaintiff must prove he had possession of the premises, and so must every plaintiff in trespass quare clausum fregit. It has been said that it is necessary to prove the defendant the actual cutter; it is not the law, because any man might injure his neighbor by employing insolvent characters to go and cut down all the timber he had in the world. It is true in trespass the defendants are all principals if you prove them trespassers; if I bring an action against ever so many defendants, they are all principals if I prove them so. If you are in possession of a corner of my land for twenty years by adverse possession, you may snap your fingers at me. If possession has been twenty years against the plaintiff, he cannot recover. Suppose I have a right to one hundred acres, twenty acres' of which is cleared and occupied and eighty acres is woods and unoccupied except for firing and wood etc., and no fence around the woodland, if another comes and cuts in my woods he is a trespasser, if he has not had an adverse possession. I have now declared the law to you, if you are of opinion that the lines of the lands extend as laid down upon the plot, you will find for the plaintiff, but, if you apprehend it is not so, you will give a verdict against him. If you are satisfied of the bounds and of the possession, and of a cutting by defendant, or somebody for him and by his direction, you will give a verdict for the plaintiff, otherwise you will find a verdict for the defendant.

Verdict for plaintiff and £3 damages.