Richard Smethurst v. Moses Journey

Richard Smethurst v. Moses Journey. Ho description of the close -necessary in an action on the case under the statute for trespass, and if alleged in the narr, it need not be proved. But it is otherwise in an action of trespass guare clausemfregit. Action on the case for taking away four cart-loads, of gravel and feldspar from the land of the plaintiff. There was a public road, on both sides of which the plaintiff" owned the land, and the material was taken from a bank alongside of the road, but whether within the limits of it as surveyed and laid out, did not appear from the evidence. The close was described in the narr by abuttals, but no proof was offered to sustain them. For the defendant it was objected, that as the narr set out the close by abuttals, which the statute required, it was a material averment, and without some proof in support of it the plaintiff" could not recover. It was also objected that an action on the case would not lie, but it should have been trespass q. c.f., notwithstanding the provision of the statute abolishing the distinction between them; also that no damage had been proved, and that none in point of fact had been sustained by the plaintiff. For the plaintiff it was replied, that the action was in case, which would lie under the statute, and that no allegation or proof of abuttals was required in the action. That no proof of actual damage was necessary, since every entry on the land of another, without authority or license, constituted a trespass, which imported an injury in law, and for which the owner was entitled, in the absence of any farther proof, to nominal damages at least. [MAJORITY — The Court] The Court charged the jury: That the action would lie by virtue of the statute, but no designation of the close by abuttals or by other description was necessary, under the provisions of it, except in an action of trespass quare clausem fregit; the object of which was to avoid the plea of liberum tenementwn, and to dispense with the necessity of a novel' assignment in reply to it; which, however, did not apply in the present form of action. The allegation was therefore altogether immaterial, and required no evidence to sustain it. The principle, as stated by the counsel for the plaintiff, in regard to every wrongful entry on the lands of another, was also correct, for every such entry was in itself a trespass, in which the law implied damage; but the principle would not apply in this case if the entry was on the public road merely, which all persons had a right to enter on, and not upon the possession of the plaintiff outside of the limits of it. In no case, however, could they allow any damage for the material taken away, for no damage of that kind had been proved. Booth, for plaintiff. McCauley, for defendant. The defendant had a verdict.