Phelps v. Berkshire Street Railway Co.

96 N.E. 128, 210 Mass. 49, 1911 Mass. LEXIS 998

• Court: Massachusetts Supreme Judicial Court
• Decided: October 16, 1911
• Status: Published

Opinion

Sheldon, J.

1. The plaintiff’s knowledge that the defendant had entered this land and put up poles and strung wires thereon is not necessarily fatal to her maintenance of the action. She was then merely a second mortgagee of the premises, and rightly or wrongly supposed that the consent of the owner of the equity of redemption gave the defendant the right to do what it did. But this did not authorize the defendant, after the plaintiff’s superior title had become absolute, to maintain its structures upon her land without her consent and against her prohibition. For such maintenance and the continued use of the poles and wires for the transmission of an electric current over the land after her request for their removal the plaintiff can maintain an action of trespass quare clausum. She does not recover for the original entry and erection of the poles and wires, but for their wrongful maintenance and use in defiance of her request. This was the point decided in Benjamin v. American Telephone & Telegraph Co. 196 Mass. 454. the case is not like Beers v. McGinnis, 191 Mass. 279, or Fenner v. Sheldon, 11 Met. 521, relied on by the defendant.

2. The instructions as to the measure of damages were correct and well guarded. The action was for the wrongful disturbance of the plaintiff’s possession; and the character of the defendant’s structures and of its acts in sending a dangerous current of electricity over her land was material to be considered. Hunter v. Farren, 127 Mass. 481, 484. French v. Connecticut River Lum- ber Co. 145 Mass. 261. Pye v. Faxon, 156 Mass. 471, 474. See the discussion as to proximate and remote damages in Leavitt v. Fiberloid Co. 196 Mass. 440, 446, et seq.

3. The other exceptions have not been argued, and we treat them as waived.

Exceptions overruled.