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an alteration in the law for recovering landed property, the Judges took time to consider this case, and after inature deliberation were of opinion, that the judge in the Circuit Court at Lancaster should have sustained the motion for a nonsuit, as in every action of trespass on lands, it enters into the very nature and spirit of the remedy, that some injury, however small, shall have been committed on the premises; and unless something of that kind be proved on the trial, there is nothing for the jury on which to found a verdict. A bare threat on the rock to prevent the plaintiff from fishing, or any obstruction of that sort on the part of the defendant, or preventing a canoe from landing there, would have been sufficient for the purpose of supporting the action; but as nothing of that nature was proved, the cause of action failed and the defendant was entitled to a nonsuit. The Act of 1791 did not alter the nature of the law in order to enable a party to maintain an action of trespass; it only changed the old action of ejectment into an easier and more intelligible mode of trying titles to lands by this suit, but left all its essential requisites attached to it in every other respect.

As the Judges were of opinion that the defendant was entitled to a nonsuit in this case, they did not go into a consideration of the second ground, or motion for a new trial. Rule for setting aside the verdict, and for leave to defendant to enter up the nonsuit made absolute. All the Judges present.

284. POTTER v. NEW HAVEN

SUPREME COURT OF ERRORS OF CONNECTICUT. 1868

35 Conn. 520

EJECTMENT, brought to the Superior Court of New Haven County, and tried on the general issue closed to the court, before PHELPS, J.

The declaration alleged that the plaintiff on the 1st day of May, 1863, was seized and possessed, of his own right in fee, of the land described, and that on that day the defendants entered and ejected him therefrom and had ever since held him out of possession, and claimed the sum of ten dollars damages and the possession of the premises. On the trial the plaintiff offered evidence to prove, and claimed that he had proved, that on the day mentioned he was the owner in fee of the premises described, and entitled to the possession thereof, and that on that day the defendants entered upon the premises, and removed certain dressed stone belonging to the plaintiff, which had been placed thereon by him, and claimed that he was entitled to recover of the defendants nominal damages and costs for the entry and the removal of the stone.

The Court held that the plaintiff could not recover for the trespass in the present action and rendered judgment for the defendants. The plaintiff thereupon moved for a new trial.

L. H. Bristol, in support of the motion.

C. R. Ingersoll, contra.

BUTLER, J. We are all satisfied that the judgment below was right. The plaintiff brought his action of disseisin, alleging that he was the owner of a tract of land, that the defendants entered upon it and ejected him therefrom, and thereafter deforced and continued to deforce and hold him out of the premises, to his damage the sum of $10, and demanding the surrender of the possession together with the damages and

costs.

The declaration is in the common form in use in this State in the action of disseisin. On the trial the plaintiff did not prove any ouster or dispossession, but simply that the defendants entered upon the land, upon a single occasion, and removed certain dressed stone of the plaintiff, which had been placed thereon by him; and claimed that he had a right in this action to recover nominal damages and costs, notwithstanding the act proved was a mere trespass. The Court overruled the claim and rendered judgment for the defendants, and the plaintiff moves for a new trial.

We think the Court was clearly right. Our action of disseisin, or of ejectment as it is generally termed, has existed as a distinct action from an early period after the settlement of the State. It is in its nature applicable, and has uniformly been applied, to cases where the owner of land has been ousted and dispossessed and continued deforced up to the time when the action was commenced, and there has been no decision or practice to justify the claims of the plaintiff.

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To the first claim of the plaintiff, that a party may recover nominal damages and costs in an action of disseisin without proving that the dispossession has been continued up to the time of trial, we assent; but that cannot help him. He did not prove an ouster and a continued dispossession up to the time when the action was commenced, nor in fact any ouster or deforcement at all. His case therefore is not the case he assumes it to be in his brief. It is not a case where the Court decided against him on the ground that he failed to prove that the defendants were still in possession at the time of trial, but one where the Court rested their decision on the ground that there had been no dispossession of the plaintiff at any time.

To the second claim of the plaintiff, that he has a right to recover damages for the trespass in this form of action, in a case where there never was any ouster or deforcement, we cannot assent. There are no averments in the declaration adapted to it, and there is no precedent or practice for it in this State, and it is not consistent with principle or public policy. Our action of ejectment was adopted and has been uniformly used for the recovery of land of which the plaintiff has been entirely dispossessed. We have at the same time a distinct action of trespass to recover damages for an injury to the possession where the plaintiff has not been dispossessed. Principle and sound policy require

that these actions should be kept distinct and separate, as they have hitherto been; there is a clear landmark between them which should not be broken down by permitting a plaintiff in ejectment, if he fails to prove an ouster, to prove a mere trespass however trifling and recover. We are not prepared to establish such a precedent and a new trial is not advised.

In this opinion the other judges concurred.

285. ARTHUR G. SEDGWICK and FREDERICK S. WAIT. Treatise on the Trial of Title to Land. (1886. 2d ed., 236, p. 156.) It is usually an indispensable part of the plaintiff's case in ejectment to show that, at the commencement of the action, the defendant was in possession of at least some portion of the lands to which the plaintiff seeks to establish title. . . . There are substantial objections to the practice of requiring the plaintiff in actions to try title to prove that the defendant is in possession and exercising acts of ownership over the land. It is often very difficult, and sometimes practically impossible, to distinguish between acts which constitute merely trespasses on the land and acts amounting to a claim of title or an exercise of ownership over it; and though trespass and ejectment are distinct remedies, which must not be confounded, it is not an easy task to find the dividing line. The practice of encumbering actions for the trial of title with this issue of the possession of the defendant often results in the miscarriage of the action, and places the claimant in an extremely awkward position. Thus questions of fact involving the title are sometimes submitted to the jury, together with disputed facts as to the possession or occupancy of the lands by the defendant, and the jury under the practice in some States is allowed to render a general verdict. If the verdict is rendered, and a judgment entered for the defendant on the ground that he has not withheld the possession, then the object of the action is not accomplished, and, though the plaintiff may have a perfect title to the land, yet there is a judgment record showing that he was defeated in an action of ejectment, in which that title was apparently involved. The questions involved in the trial of the title to land are so important that neither the Courts, the litigants, nor the juries ought to be called upon to consider the secondary and collateral question as to the possession of the defendant. The title alone should be brought in issue and not complicated and embarrassed by disputed questions of possession.

286. LE BLOND v. PESHTIGO

SUPREME COURT OF WISCONSIN. 1909

140 Wis. 604, 123 N. W. 157

APPEAL from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Action by Katherine Le Blond against the Town of Peshtigo and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The complaint, in substance, charges that the town of Peshtigo is one of the duly organized towns of Marinette County, and that the

other defendants are, and at all the times mentioned in the complaint were, the duly elected, qualified, and acting supervisors of said town; that the defendants during the month of August, 1905, entered upon certain lands owned by and in the possession of plaintiff, and tore down fences, cut and removed valuable timber, and constructed a highway and drain thereon at a cost of $500, which was paid by the defendant town; that said defendants never acquired any right by consent of the plaintiff or otherwise to appropriate any portion of her land; and that she has been damaged in the sum of $900 by reason of the unlawful act complained of. The complaint further sets forth that ever since August 12, 1905, defendants have continued to unlawfully use the premises appropriated for a drain and public highway, and that certain of the defendants threaten and assert that, if plaintiff attempts to fence up the pretended drain and highway, they will tear down such fences and obstructions and continue to use the same, and that said defendants have ever since the 12th day of August, 1905, permanently deprived the plaintiff of the use and enjoyment of that portion of the premises appropriated by the defendants, and that plaintiff fears the defendants will carry out the threats aforesaid, and will harass, vex, and annoy the plaintiff, and that plaintiff has been put to irreparable injury, and will be put to the necessity of bringing a multiplicity of actions to protect her rights. By way of relief, plaintiff asks that the defendants, their agents and servants be enjoined and restrained from taking possession or attempting to take possession of the strip of land in question, and also from in any manner interfering with the enjoyment, use, and occupation thereof by the plaintiff, and that plaintiff recover $900 damages done and suffered by reason of the unlawful acts complained of. One of the grounds of demurrer was that the complaint did not state facts sufficient to constitute a cause of action. This is the only ground relied on to sustain the order appealed from.

L. M. Nelson (P. A. Martineau, of counsel), for appellant. W. B. Quinlan and Henry T. Scudder, for respondents.

BARNES, J. (after stating the facts as above). By her complaint the plaintiff seeks to recover possession of her property and damages for the wrongs she has sustained. If, under the facts stated, she is not entitled to resort to a court of equity to secure this relief, then the demurrer was properly sustained.

1. As a general proposition, equity will not interfere to prevent a mere threatened trespass unless such trespass will work irreparable injury. . . . This allegation construed in connection with the relief prayed, is insufficient to make a case in equity unless it can be maintained on some other ground.

2. It is urged, however, that the action is brought to recover an easement only, and that ejectment will not lie where such recovery is sought, and that the plaintiff has no adequate remedy at law. It is clear that a mere action for trespass would not furnish an adequate

and complete remedy, and, if it be true that the complaint does not state the necessary facts to constitute a cause of action in ejectment, the plaintiff has planted her suit in the proper forum. . . . Section 3077, St. 1898, provides that the complaint in an action of ejectment. shall set forth that the plaintiff has an estate or interest in the premises claimed, and shall state the nature and extent of such interest, whether in fee, dower, for life, or for a term of years, and that he is entitled to the possession of such premises, and that defendant unlawfully withholds the possession thereof from him. Section 3075, St. 1898, provides that the action of ejectment must be brought against an actual occupant of the premises claimed, if occupied, and if not so occupied, then it must be brought against some person exercising acts of ownership in the premises claimed, or against some one claiming title thereto or some interest therein. .

The complaint before us shows ownership in fee by the plaintiff, wrongful entry and occupation by the defendants, and permanent deprival of the use and enjoyment of the strip of land appropriated. Every essential fact necessary to state a good cause of action in ejectment under section 3077, St. 1898, is to be found in the complaint. We construe the averment that plaintiff has been permanently deprived of the use and enjoyment of the strip of land in question as tantamount to a statement that she has been deprived of the possession of such strip. The complaint, however, does show that defendants entered upon the land for the purpose of building a highway and drain, and that the same were built, and that the highway has since been in use. Is the plaintiff suing to recover the possession of the land or for the recovery of a mere easement over it, and, if the latter, will ejectment lie? These are the vital questions involved in determining whether the complaint is fatally defective. . . . In Racine v. Crotsenberg, 61 Wis. 481, 21 N. W. 520, 50 Am. Rep. 149, the defendant took possession of what was claimed to be a public alley, and appropriated the same to his own exclusive use. Ejectment was brought to recover the easement which the public had in such alley. It was held that ejectment would not lie to recover a mere incorporeal right, and that it would only lie to recover things corporeal which might be the subjects of seisin, entry and possession. It was further held that sections 3077, 3084, St. 1898, were not broad enough to give the plaintiff a right of action, because the plaintiff had no estate "in fee, dower, for life, or for a term of years" in the real property sought to be recovered, as the statute required. This case is not authority to the proposition that, where the owner of the fee is excluded from the possession of his land by the use of an easement over the same, he may not recover such possession in ejectment. On the contrary, the case, inferentially at least, holds that such an action. would lie.

An easement is an incorporeal right, which can only be acquired by grant or prescription, and is incapable of manual delivery. Land, on the

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