latter point there are conflicting decisions, and the con- [130] trary rule seems now to be established. (b) It appears that by damages under this statute are to be understood the net profits of the third part of the land subsequent to the death of the husband, or the teste of the original, after deducting outgoings. So, if the lands are leased for years before marriage, the wife will recover dower not according to the value of the land, but according to the rents; and it follows that if the rent reserved was nominal, no damages, or none but nominal damages, can be recovered. (c) On a plea of tout temps prist to a declaration in dower under the statute of Merton, replication of a demand and refusal to render dower before the writ, rejoinder traversing the demand, and issue thereon found for the demandant, the demandant is entitled to damages from the death of her husband, and not from the date of the demand only. (d) Many other cases have been decided on the statute of Merton, which will be found in Mr. Park's valuable treatise above cited; but equity having, as already said, obtained a very extensive control over the subject of dower, it does not appear necessary to do more than to refer to a repository of the authorities which appertain to this branch of the law. (e) In New York, the action of ejectment was early substituted for the former legal remedies for the recovery of dower, writs of dower being formally abolished; (f) and, in this action, it is provided, by statute, that "wherever the wife recovers dower in lands of which her husband shall have died seized, she shall be entitled also to recover damages for the withholding of such dower. Such damages shall be one-third part of the annual value of the mesne profits of the lands in which she shall so recover her dower, to be estimated in a suit against the heirs of her husband from the time of his death, and in suits against other persons from the time of her demanding her dower of such [131] persons; and in all cases to be estimated to the time of recovering judgment for such (b) Pilford's Case, 10 Rep., 117. Walker v. Nevil, 1 Leon., 56; Park on Dower, 308, and cases there cited. (c) Hilchins v. Hilchins, 2 Vern., 403. (d) Watson v. Watson, 20 Law J. Rep., (N. S.) C. P., 25. 1 Eng. L. & E., 371. (e) In South Carolina and Ohio, no damages are allowed in a judgment of damages, but not to exceed six dower, and the rule prescribed in the § 2. (f) 2 R. S., 343, § 24. 2 R. S., 304, years in the whole in any case." (g) Such damages are not to be estimated, however, for the use of any permanent improvements made after the death of the husband, by his heirs or by other persons claiming title. (h) And it is further enacted, that where dower is recovered in lands that have been aliened by the heir, the wife shall be entitled, in an action on the case against the heir, to recover her damages for withholding the dower from the time of the husband's death to the time of the alienation, not exceeding six years in all; and any damages so recovered against the heir, or in the dower suit against the heir's grantee, are to be respectively deducted from each other. (2) The provision which gives damages from the time of the husband's death, is an affirmance of the doctrine laid down by the Supreme Court of New York in an early case. (j) In a somewhat recent case, (k) the construction of this statute was settled; and it was held that where lands were aliened by the husband, the value was to be computed as at the time of the alienation, and no more; and it was further held, that when the widow brings ejectment for dower, although before admeasurement, she is entitled to costs. (7) On this point, independently of any statutory provision, some perplexity exists, and the greatest authorities of American law, Chancellor Kent and Mr. Justice Story, are divided. The authorities, both English and American, have been fully [132] examined by Mr. Justice Story, on the Massachusetts circuit; (m) and the result arrived at by him is, that when the heir builds on or otherwise improves the estate, the widow shall have her dower of the improvements, otherwise as against (g) 1 R. S., 742 and 743, §§ 19 and 20. (h) Sec. 21. (i) 2 R. S., 743, § 22. In Virginia, the widow recovers damages against an alienee so far forth as profits are concerned, only from the date of the subpoena, Tod v. Baylor, 4 Leigh's R., 498. In Maryland, from the time of the demand and refusal to assign; Steiger's Adm. v. Hillen, 5 Gill & Johnson, 121. In New Jersey, see Woodruff v. Brown, 2 Harrison's Ñ. J. Rep., 246. (j) Hitchcock v. Harrington, 6 J. R., 290. See, also, Jackson ex dem. Clark v. O'Donaghy, 7 J. R., 247. Humphrey v. Dorchester v. Phinney, 2 J. R., 484. (k) Walker v. Schuyler, 10 Wend., 480. (1) In Massachusetts, see on this subject, Rev. Stat., tit. Dower, and Leonard v. Leonard, 4 Mass, 533. Miller v. Miller, 12 Mass., 454. Conner v. Shepherd, 15 Mass., 163, 167. Ayer v. Spring, 10 Mass., 80. Perry v. Goodwin, 6 Mass., 498, 499. Leavitt v. Lamprey, 18 Pick., 382. Stearns v. Swift, 8 Pick., 532. (m) Powell v. Monson & Brimfield's Manufacturing Co., 3 Mason, 347. a purchaser; but that as against the latter the dowress is to have the benefit of any enhanced value of the land between the alienation and the assignment of dower, arising from the general progress and population of the country. So, if the land has depreciated; she sustains the loss. (n) On the other hand, Mr. Chancellor Kent has critically examined the subject in his Commentaries, and declares it to be the ancient and settled rule of the common law, that the widow takes her dower according to the value of the land at the time of the alienation, and not according to its subsequent or improved value; though he assented as to the right of the dowress to be allowed for increased value, arising from extrinsic or general causes. (o) In this conflict of authorities, it becomes me only to state the doubt as it exists. (p) (n) Leggett v. Steele, 4 Wash. C. C. R., 305. Coke's Littleton, 32 a. Perkins, Dower, § 328, 329. Bacon's Abr., Dower, B. 5. Gilbert's Tenures. Gore v. Brazier, 3 Mass., 523, 534. Lebby v. Swett, Story's Pleadings, 365. Catlin v. Ware, 9 Mass., 218. Ayer v. Spring, 9 Mass., 8. S. C., 10 Mass. R., 80. But in New York the point seems doubtful. Humphrey v. Phinney, 2 J. R., 484. Dorchester v. Coventry, 11 J. R., 510. Shaw v. White, 13 J. R., 179. Hale v. James, 6 J. C. R., 258. Roper, Husband and Wife, ch. 9, § 8, 346, 347. In Pennsylvania and Ohio, Mr. Justice Story's doctrine is upheld. Dunsett v. Bank of the U. S., 6 Ohio R., 76. Thompson v. Morrow, 5 Serg. & Rawle, 289. (0) Com., vol. iv., 65. (p) See Tod v. Baylor, 4 Leigh's R., 498, in Virginia, which excludes im provements. Wilson v. Oatman, 2 Blackf. Ind. R., 223. Mahoney v. Young, 3 Dana's Ken, R., 588. Wall v. Hill, 7 Ib., 172. Wooldridge v. Wilkins, 3 Howard's Miss. R., 360. In Virginia, the act, 1 Rev. Code, ch. 118, 1, 468, which authorizes the recovery of damages in writs of right, intends such damages as may be recovered in actions of trespass for mesne profits. Purcell v. Wilson, 4 Grattan, 16. See a recent English case, Garrard v. Tuck, 8 Man. Gr. & S., 231, of dower unde nihil habet, where it was held that the exact number of acres of land in respect of which dower is demanded is not material in a writ and count in dower. And see the same case as to the effect of outstanding terms, and setting aside and quashing writs of error. CHAPTER V. MEASURE OF DAMAGES FOR WRONGFUL INTERFERENCE WITH REAL PROPERTY. The Rule of Damages in actions for wrongful interference with the occupation or enjoyment of Real Estate-Trespass to Real Property-Case-Nuisance-Waste. WE have already seen, (2) when treating of the subject of nominal damages, that every unauthorized entry on the real estate of another, whether actual injury be or be not thereby inflicted, lays the foundation for a claim to at least nominal damages. (r) So says the Supreme Court of Connecticut, "An injury, legally speaking, consists of a wrong done to a person, or in other words, a violation of his right. For the vindication of every right there is a remedy. When, therefore, there has been a violation of a right, the person injured is entitled to an action. If he is entitled to an action he is entitled to at least nominal damages, or else he would not be entitled to a recovery. Such damages are given in order to vindicate the right which has been invaded; and such further damages are awarded as are proper to remunerate him for any specific damage which he has sustained. It is on this principle that a person may sustain an action of trespass for an unauthorized entry on his land, although he show no actual specific damage to have thereby accrued to him, and even although the defendant may prove that such act was beneficial to the plaintiff." (8) And we have also considered the rules of compensation where the possession of real property has been wrongfully (q) Ante, Chap. II, 43, et seq. So in Texas, Carter et al. v. Wallace, 2 Texas R., 200. (r) So even an entry on the plaintiff's land for the purpose of taking away the defendant's own property, is a technical trespass. Heermance v. Vernoy, 6 J. R., 5; Blake v. Jerome, 14 J. R., 406. But withheld. The present division of our subject is consequently reduced to narrow limits. As a general rule, the remedy for illegal entries upon [134] real estate, or interference with its enjoyment, is either by an action of trespass, or trespass on the case, or proceedings as for nuisance; in all these proceedings the rules are analogous, and the measure of damages is the amount of injury directly resulting from the act complained of. (1) It is well settled in England, and generally in the United States, that to entitle the plaintiff to bring an action of trespass quare clausum fregit, possession in fact is indispensable.(†)(2). And (t) 3 Wooddeson, 193, 194. Bedingfield v. Onslow, 8 Lev., 209. The general doctrine that trespass quare clausum fregit will not lie by lessor out of possession against a stranger for an injury to real property, is well settled in New (1) The holder of a pew in a church, has a remedy where his pew is destroyed by the trustees for convenience only, or where the trustees have been guilty of a wanton and malicious abuse of their power in destroying his pew. His only remedy in such cases is, however, by an action for damages by way of indemnity for the loss of his pew. If the church edifice is so far decayed as to be unfit for use as a house of public worship, and it is for that reason taken down, the pew-holder's right to his pew is gone, and he is not entitled to any indemnity for its loss. Voorhees v. The Presbyterian Church of Amsterdam, 11 Barb. (N. Y.), 103; affirming S. C., 8 Ib., 135. Compare the case of The Minister, &c., of the Ref. D. Church in Saugerties, 16 16., 287. (2) A tenant may recover for damages to his possession, though not for injury to the freehold; and he is entitled to whatever damages he sustains by the interference with his possession. So held where the defendant, in blasting rock on his own land, threw stones on an adjoining lot occupied by plaintiff as tenant; and so extended his blast as to forcibly split out the rock in defendant's lot, undermining the foundation of his house. Gourdier v. Cormack, 2 E. D. Smith's (N. Y.) C. P. R., 200. In estimating the damages recoverable by a tenant of a building for injuries to his possession, the expense necessary to restore the building to a state such as would make that possession as beneficial to the tenant as it was before the trespass was committed, should be allowed. In general such allowance should not exceed the value of plaintiff's term, taking into view the rent reserved. But where, in an action for such trespass, it appears that by the terms of the tenancy the plaintiff is bound to make repairs, and to restore the premises to the landlord at the end of the term in as good a condition as when they were leased, then the defendant is bound to enable the plaintiff to put the building in as good a condition as it was when the trespass was committed. Walter v. Post, 4 Abbotts' Pr. R., 882. In Maryland it is held, that in an action by a termor against his reversioner, the measure of damages is the actual loss sustained by the lessee; but in such an action against a stranger and wrong-doer, the termor is treated as the absolute owner of the property, and he is held entitled to recover its full value. Harker v. Dement, 9 Gill., 8. As to a recovery by one of two co-tenants, see Hibbard v. Foster, 24 Vt., 542. |