Tinsman v. Belvidere Delaware Railroad

25 N.J.L. 255

• Court: Supreme Court of New Jersey
• Decided: November 15, 1855
• Status: Published

Opinion

The Chief Justice.

This action is brought to recover damages for an injury to the plaintiff’s reversionary interest in certain real estate. The property injured consists of a saw mill, eddy, and creek’s mouth, upon the river Delaware of which the plaintiff alleges that he was seized as reversioner, the property being in possession of certain tenants for years. The injury complained of is the construction, by the defendants, of their railroad, consisting of an embankment of lumber, stones, and earth, of great height and width, in the eddy and creek’s mouth, so that rafts cannot be landed, and lumber stored and secured for the use of the said mill in as secure and safe a manner as the tenants had been accustomed, and had a right to do.

That the act complained of is of a character naturally, if not necessarily, injurious to the reversion, cannot be doubted. The value of a saw mill upon a river depends very much upon its convenience for landing and storing logs, and rafting the lumber when sawed. A deprivation, total or partial, of these advantages must affect in a greater or less degree the value of the property. And the injury to the reversion consists mainly in the fact, that the occupant of the property cannot land his rafts, or store his logs, or raft his lumber, with as much convenience as formerly.

It is no objection to the action by the reversioner, that the act complained of is also an injury to the tenant. Most torts which are injurious to the reversion, are prejudicial also to the tenant in possession; and in many cases they are an injury to the reversion, for the very reason that they do render the premises less convenient or beneficial to the occupant. Nor is it any answer to the complaint, that the injury complained of is one for which tho tenaiit may sue. The tenant and reversioner may each maintain his action for the self-same act, and each may recover for the injury they respectively sustain by reason thereof. The defendant is not thereby compelled to respond in damages twice for the same injury, but simply to compensate each of the parties injured, for the consequences of his tortious act. Bedingfield v. Onslow, 3 Lev. 209; Sedgwick on Dam. 142; Com. Dig. “ Action on the case for Nuisacane" B; 1 Chit. Pl. 72.

Nor is it an answer to the action by the reversioner, that the cause of the injury may by possibility be removed, or the nuisance abated before the determination of the tenancy for years. This' is true of all nuisances, and of many immediate injuries to the freehold itself. An action will lie by the reversioner for erecting a wall, whereby the plaintiff’s lights are obstructed. Jeffer v. Gifford, 4 Burr. 2141; Tomlison v. Brown, Sayer 215. For obstructing the flue of a chimney, thereby rendering the room unfit for habitation. 2 Chit Pl. 778. For diverting a stream of water, whereby the soil was impoverished. 2 Chit. Pl. 794. For throwing back water upon the land, so that it was rendered boggy and miry. Spenc. 536. For obstructing a way, whereby the enjoyment of the promises is rendered inconvenient. 2 Chit. Pl. 810. In all these eases it is apparent that, by possibility, the cause of the injury may bo removed before the estate of the tenant for years determines; yet while the nuisance or canse of complaint is continued, the premises are diminished in value, and the present value of the reversion is consequently diminished. The estate of the reversioner would sell for less. The law, therefore, regards him as sustaining an injury. And if the inheritance he in fact diminished in value, the reversioner may maintain an action for the injury, though there may have been no diminution in the amount of the rent, and no loss by a sale of the premises at a depreciated price.

In Shadwell v. Hutchinson, 3 Car. & P. 615, the action was brought by the reversioner for obstructing an ancient light, by erecting a roof over an uncovered space above the window, by means whereof the room was darkened, and rendered close, uncomfortable, unwholesome, and unfit for habitation. It was proved that the obstruction might be easily removed in the course of two or three days. Lord Tenterden said, I have no doubt that this is a case in which the reversioner may maintain an action, because it is an injury to the right that he complains of; and the effect of letting the obstruction stand might be, that, from the death of witnesses, evidence of its erection might be lost, and so the injury would become permanent. The plaintiff recovered nominal damages, one shilling.

A second action was subsequently brought for obstructing the same light, by a continuance of the same nuisance. The defendant pleaded a former recovery for the “ same identical grievances.” It w'as admitted that the obstruction was the same as at the time of the former action. But lord Tenterden held that the complaint, being for a later and different period, the grievances were not the same, and the plaintiff had a verdict for £100 damages. A new trial was subsequently moved for, on the ground that there was no real substantial damage to the reversion, but only an ideal damage, for which the plaintiff had previously recovered, and that the continuation of the obstruction caused no new damage to the reversion, although it did to the possession. But the court refused the rule. Shadwell v. Hutchinson, 4 Car. & P. 333.

This case sustains the position, that the ' action may be brought by the reversioner, where no actual damage has been sustained by loss of tenants or diminution of rents, but for the mere maintenance of an erection prejudicial to the right of the reversioner; and that in such action more than nominal damages may be recovered.

In Baxter v. Taylor, 4 Barn, & Ad. 72, the Court of Rings Bench held that no action would lie by a reversioner for a mere entry upon land, though under a claim of right, on the double ground, that the injury is not so permanent as to injure the inheritance; and that, the wrongdoer could acquire no right, as against the landlord, while the premises remained in possession of the tenant.

And in Dobson v. Blackmore, 9 Q. B. 991, the same court held that an action would not lie by a reversioner for obstructing a public navigable river by means of a floating dock, and thereby incommoding the tenant in possession. But Denman, C. J., in delivering the opinion of the court, concedes that an action might lie for an obstruction of a permanent nature in the highway, by which the value of the premises would be lowered.

In Baker v. Sanderson 3 Pick. 348, the Supreme Court of Massachusetts held that an action would not lie by the owner of a mill occupied by a tenant, for an injury resulting from the wrongful erection of a dam by the defendant, and throwing tho water back upon tho wheels of the plaintiff’s mill, unless plaintiff averred a loss of rent by reason of such injury.

This case is clearly inconsistent with the case of Shadwell v. Hutchinson, and, as I conceive, with souud principle.

If a permanent dam, under a claim of right, be constructed across the stream, whereby the water is unlawfully penned back upon the wheels of a mill of an adjoining proprietor, not only the present power, but the value of the mill is injured. It will sell for less. It will rent for less. The owner is damnified in the value of his estate. The sale of tho premises at a diminished price, or a lease at a lower rent, may be satisfactory evidence of the prejudice to the inheritance, and may afford a safe measure of damages. But neither a sale nor a renewed lease is necessary to consummate the wrong, or to entitle the party injured to his remedy.

But the settlement of this point is not essential to the decision of the present inquiry. Here, not a mere nuisance which may he abated, but a direst permanent injury to the freehold itself, forms the subject of complaint. For this, all the authorities agree that the action by the reversioner may be maintained. It remains to inquire whether the cause of action is properly stated.

The first count of the declaration is defective, because it avers that the act of the defendants occasioned an injury to the tenants of the plaintiff, without averring that the reversionary interest of the plaintiff was injured or lessened thereby. Although the act in itself may have been such as naturally to prejudice the reversion, it is so stated in pleading as to limit the operation exclusively to the tenants.

The well settled rule is, that if the plaintiff declare for an injury done to the reversion, he must either state an injury of such a permanent nature as to be necessarily injurious to the reversion, or must explicitly allege that it was done to the injury of the reversion. Jackson v. Pesked 1 M. & S. 234; Potts v. Clarke, Spenc. 541. The objection is not obviated by the averment at the close of the second count. Each count should contain a distinct and complete cause of action.

The second count, though unskilfully drawn, contains a legal cause of action. The pleader has undoubtedly restricted his claim for damages within very narrow limits. He avers that, by reason of the premises, the said tenants of the plaintiff could not land rafts, or store and secure logs in the eddy and mouth of the creek, as they of right ought to do, whereby the plaintiff’s reversionary interest in the premises has been greatly lessened and injured. He has limited his complaint to this ground alone, although, in the previous part of the count the plaintiff had averred a right of landing and storing lumber to exist in himself. He does not aver that his own right to land lumber is at all interfered with, or that the value of. the premises are otherwise deteriorated.

This averment, that the act is prejudicial to the tenant’s interest, does not render the count in itself illegal. The same act which injures the tenant may, as has been said, prejudice the reversioner, and many of the precedents contain this averment of special injury to the tenant. 8 Went. Pl. 549, 550, 551; 2 Chit. Pl. 810.

It is matter of proof upon the trial, that the act complained of occasions injury to the reversion also. The aver ment, that the reversionary interest is prejudiced, is an essentia] part of the count, and must be sustained by proof. Potts v. Clarke, Spenc. 536. The demurrer being to the whole declaration, and one of the counts being sufficient, there must be judgment for the plaintiff.

Potts, J.

The declaration alleges that the plaintiff has tin reversionary estate and interest in a certain messuage, saw miil, and edly and creek’s mouth, for rafting and storing lumber, on tlie Museonetcong creek, and on tlie bank of tlie Delaware, in tlie occupation of liis tenant; and that tlie defendants have erected their railroad in said eddy and mouth of the creek, two hundred feet long and ninety feet wide, and by means thereof prevented the water from flowing in the said eddy and mouth of the creek in its ordinary and usual channel, so that tlie tenants of the plaintiff could not land, raft, and store logs and lumber in as secure and safe a manner, for the said saw mill of tlie said plaintiff, at the landing place on the bank of the river and in the eddy, &c., as they had been accustomed to do, and of right ought to do. There are two counts, substantially the same, except that the first does not allege any actual injury to the reversionary estate and interest. This, in Jackson v. Pesked, 1 Maule & Selwyn 234, was held fatal.

The second count does allege that the plaintiff’s reversionary interest in the premises has been greatly lessened and injured by the act complained of, and. he has sustained damage, &e.

This count is good. The case differs from that of Beavers v. Cole and Trimmer, decided at the last term, in tliis, that there the erections were not complained of, but only the wrongful use of the water by means of the erections. The erections were not a necessary or natural cause of the wrongful use of the water; the penning back of the water by day, and the discharging of it in large quantities by night, was the act of the defendants, accomplished by shutting down and hoisting their gates. As far as appeared by the allegations of the counts which were held to be bad in that case, if the erections had been let alone, with tlie gate either up or down, no injury would have resulted to the mills below. But here is an erection fixed and permanent in its character and mode of construction, which does the mischief complained of without any other interference.

In Dobson v. Blackmore,9 Adol. & Ellis, N. S. 1003 Lord Denman said, that if an obstruction appeared to be of a permanent nature in its construction, so that the plaintiff’s t eversionary interest might be lowered in public estimat on, and loss might follow, he would not say the reversioner might not have an action. But however this may be- in a case like this, where the erection complained of is the immediate cause of injury to the possession, and, without further interference by the act oi a man, would in the ordinary course of things continue to- he so on the determination of the tenancy, the reversioner has a right of aetion, on the ground, that the encroachment on the inheritance may, by lapse of time, ripen into a right where the reversioner has notice or knowledge of it. Angel on W. C. § 221, 234, 398 ; Bower v. Hill, 1 Bingham’s N. C. 549.

The second count being good, the demurrer, as it goes to the whole declaration, must be overruled.

Elmer and Vredenburgh, Justices, concurred.