John Griffin vs. Horace Gilbert

John Griffin vs. Horace Gilbert. The omission, in a declaration in trespass to, land, of the averments that the acts complained of were done with force and arms, and were. against the peace, *if a defect at all, is only a formal one, of whichj *494 ] advantage can be taken only by special demurrer. And there is no rule which requires that the entry of the defendant on the land of the plaintiff should be described by the terms broke and entered. Any language which imports a forcible and unlawful entry is sufficient. The following held on error to be a sufficient count in trespass: Then and there to answer unto the plaintiff in a plea of the case, whereupon the plaintiff declares that on &c., he being lawfully seized of .a certain tract of land, [describing it,] on which his dwelling house stood, the defendant did, on <fcc., without law or right, and fpr the purpose of vexing and injuring the plaintiff, wrongfully and wantonly plow and dig a deep ditch on the highway and land of the plaintiff, in the front part of said tract of land, thereby obstructing and endangering the plaintiff in going to and from his dwelling-house and premises to said highway; and the defendant then and there obstructed the water course leading from the pond of the plaintiff on said premises to other land of the plaintiff on the opposite side of said highway; and did then and there also wantonly and wrongfully dig up and draw a large rock from said highway, and place the same on said tract of land of the plaintiff, within said enclosure, to his great injury and annoyance, whereby the plaintiff has been put to great inconvenience and damage. The above count was preceded by two counts in trespass, for an entry at the same time on the same land, and the digging up of the soil and carting stones upon it, and was alleged to be for the same cause of action as the preceding counts. .Held,, that if the count was to be regarded as in case and not in trespass, it did not so clearly appear that it was not for the same cause of action with the others, as to render the declaration insufficient, on error, for misjoinder of counts. Trespass, brought. originally. before a justice of the peace, and appealed by the defendant to the superior, court. The declaration contained three counts, the first-of which was as follows :—In a plea-of trespass, whereupon the plaintiff, declares and says that heretofore, to wit, on the 1st day of January,. 1858, he was, and ever since has been, lawfully seized and possessed of a certain tract-of land, situated &q., [describing it.] And the plaintiff says that heretofore, to wit, on the 1st day of June, 1858, and on divers other days and times between that day and the commencement of this action, the defendant with force and arms broke and entered into and upon the above described premises, and did then and there dig up the rocks, stone, dirt, earth and soil of the plaintiff, and removed the same, and converted it to his own use. The second count was as follows :—And the plaintiff further says that on the 1st day of January, 1858, he was [ *495 ] and *ever since has been lawfully seized and possessed of a certain other tract of land, situated &c., [describing the same land as in the first count;] and the plaintiff says that while he w°as so seized and possessed, to wit, on the first day of June, 1858, and on divers other days and times between that day and the bringing of this suit, the defendant, with force and arms, broke and entered into and upon the said last above described tract of land, and with his oxen did draw and place upon said tract of land a large rock, and large quantities of stone, and did then and there tear up and break the soil of the plaintiff ’s said land, and did then and there trample down and destroy the grass and herbage of the plaintiff then and there standing and growing, of the value of ten dollars, and other wrongs and injuries to the plaintiff’s said premises the defendant then and there did. The third count was as follows :—Also to answer unto the plaintiff in a plea of the case, for the same cause of action as set forth in the two preceding counts in this declaration, according to the provisions of the statute in such case made and provided, whereupon the .plaintiff declares and says that, on the first day of January, 1858, he being so lawfully seized and possessed, and ever since continuing so lawfully seized and possessed, of the said tract of land described in said above counts, the same being the homestead of the plaintiff, and on which his dwelling house and other buildings stand, the defendant did, at said several times in said counts mentioned, without law or right, and for the purpose of vexing, injuring and annoying the plaintiff, wrongfully and wantonly plow and dig a large and deep ditch and gutter on the highway and land of the plaintiff, in the front part of said tract of land, thereby obstructing, hindering and endangering the plaintiff in going to and from his dwelling house and premises to said highway, as he was accustomed to do and had the right to do ; and the defendant then and there stopped up and obstructed the water course leading from the pond of the plaintiff on said premises to the other land of the plaintiff on the opposite side of said highway, which the plaintiff had then and still has the right to maintain and use, and the defendant did, then and there, also wantonly and wrongfully dig up and *draw a large rock from said highway, and [ *496 ] place the same and a large quantity of stones on the said tract of land of the plaintiff within said enclosure, against the will and consent of the plaintiff, to his great injury and annoyance, where the same still remain, by means whereof the plaintiff has been put to great inconvenience and damage. After a verdict and judgment for the plaintiff, the defendant filed a motion in error, and brought the record before this court for revision, assigning as error a misjoinder of counts, in that the cause of action set up in the third count, which was in case, was different from that set up in the other counts, which were in trespass, while counts in trespass and case can be joined only •when the cause of action is the same in both. Slurges, for the plaintiff in error. In the first and second counts the causes of action are direct and immediate injuries to the land of the plaintiff, committed with actual force, and are laid in trespass. The third count is in form trespass on the case. The pleader denominates it a plea of the case, and intended it as such. It does not complain of a breach of the plaintiff’s close, but alleges that the act was wrongfully and wantonly done, for the purpose of vexing and annoying the plaintiff, and that the defendant did thereby obstruct, hinder, and endanger the plaintiff in going to and from his dwelling house to the highway. The injury complained of is not the direct effect of the act done, nor is it immediate, but consequential. It arises from the fact that he had occasion to go over this ditch to his dwelling house, and was obstructed by it. It is a personal injury, whereas the injuries in the first and second counts are to the land alone. This form of action is appropriate to redress the injury here complained of. The trespass may be waived. This principle is frequently applied to cases of injury to personal property. Boerum v. Taylor, 19 Conn., 123. And to cases of trespass to land followed by injuries to the relative rights of the owner. Bennett v. Allcott, 2 T. R., 166. Moran v. Dawes, * *4 Cowen, 412. Macfadzen v. Olivant, 6 East, 386. [ *497 ] 1 Chitty Pl., 196. Bourden v. Alloway, 11 Mod., 180. It has also been applied in practice to cases of injury to real estate. Vedden v. Vedden, 1 Denio, 257. Fetch v. Gilman, 22 Verm., 38. Cast Plate Manufacturers v. Meredith, 4 T. R., 794. Boulton v. Crowther, 2 Barn. & Cress., 703. Roberts v. Read, 16 East, 215. Callender v. Marsh, 1 Pick., 418. Keeble v. Hickeringill, 11 East, 574. Jefferies v. Duncombe, id., 226. In all these' cases, if trespass only would lie, the plaintiff would have been nonsuited. Haward v. Bankes, 2 Burr., 1113. Seneca Road Co. v. Auburn and Rochester R. R. Co., 5 Hill, 170. Case will lie for an overhanging building, although the erection of it was a trespass. Fay v. Prentice, 1 C. B., 828. It is on this principle that a ne\v action of trespass will lie for the continuance of a trespass. Holmes v. Wilson, 10 A. & E. 503. Bowyer v. Cook, 4 C. B., 236. The injury to the water course was a nuisance to be redressed ih this form of action. The word there refers merely to venue. Company &c., of Mersey Navigation v. Douglas, 2 East, 497. Jefferies v. Duncombe, supra. -If therefore the injuries in this count be such that an action on the case could be sustained for them, then this is an action on the case. But if this were otherwise, if case would not lie for a nuisance committed in the highway on the land of the plaintiff, still this is a count in- case. The cases are numerous that sustain this position. Savignac v. Roome, 6 T. R., 125. Wetmore v. Robinson, 2 Conn., 529. Holford v. Bailey, 8 A. & E., (N. S.,) 1000. Adams v. Hemmenway, 1 Mass., 145. Agry v. Young, 11 id., 220. Humiston v. Smith, 22 Conn., 19. Ward v. Taylor, 1 Penn. S. R., 240. Knox v. Cambell, id., 367. Greber v. Kleckner, 2 id., 291. Taylor v. Rainbow, 1 Hen. & Munf., 423. Belden, for the defendant in error. The count in case is alleged to be for the same cause of action as that set forth in the counts in trespass, and in a doubtful case this averment should control. Havens v. Hartford [ *498 ] *& New Haven R. R. Co., 26 Conn., 225. The more particular description of-the wrongful acts of the defendant in the count -in case,- clearly does not make the cause of action in that count different from those of the preceding counts in trespass. Nor does the-averment in that count that the acts of the defendant were done wantonly ; because the plaintiff, under the- counts in trespass, could prove the wanton conduct of .the defendant, and all the circumstances which attended the- transaction,, to aggravate the damages, without the averment that t.he acts were done wantonly. Edwards v. Beach, 3 Day, 447. Churchill v. Watson, 5 id., 140. Treat v. Barber, 7 Conn., 274. To show a misjoinder it must appear-clearly by the record» itself that the causes of action in the counts in trespass and case are different; as was the case in Boerum v. Taylor, 19 Conn., 122, and in Havens v. Hartford & New HavensR. R.Co., supra. The third count alleges an entry on the same land, and that the defendant dug up the land, which is the same act charged in the other counts. All the injuries set up in the third count are merely the consequences of the acts set forth in the other counts, only a little more particularly stated. [MAJORITY — Storrs, C. J.] Storrs, C. J. The only question made by the plaintiff in error, is, whether the declaration on which judgment was rendered in this case is defective, for the reason that the last count in it is in case, and for a different cause of action from that which is set forth in the other two counts with which it is united, and which are confessedly in trespass. Both of these conditions are necessary in order to invalidate the declaration, since the passage of the act of 1886, (Rev. Stat., tit. 1, § 274,) providing that counts in trespass on the case founded in tort and counts in trespass, for the same cause of action, may be joined. If, therefore, the last count in this declaration is izot in case but in trespass, or if it is in case but for the same cause of actiozi as that set forth in the others, the objection of misjoinder fails. We are strongly inclined to the opinion that, if the thiz’d count is in case, it sufficiently appears that it sets forth the *same cause of action as that contained in [ *499 ] the other counts. It alleges that the land upon which the acts of which it complains were done, is the same as that on which the trespasses coznplaizzed of in the others were committed, adding only a somewhat fuller description of the land ; and it states that the acts complained of in that and the other counts were all done at the same tizne. The acts described izz each of these three counts are also of the same character, the last only stating the part of the land on which they were done with more particulaz’ity, and that they hindered the plaintiff in passing between his dwelling house and the highway, and obstructed a water-course leading from the plaintiff’s preznises to his other lazzd conzzected therewith. We are zzot satisfied that the consequences of those acts were thus introduced only in that count as a substantive cause of action, or for any other purpose than to aggravate the injury set forth in it, and for that purpose they might clearly have been introduced into the other counts, it does not therefore appear that all these counts can not be, or that they are not, for the same cause of action. But we are clearly of the opinion that the third count, properly considered, is in trespass and not in case, and that therefore its joinder with the others is allowable at common law. As a count in trespass it is obviously very informal, and oznits several technical expressions which are usually introduced in such a count; such as that the acts were done with force and arms, and against the peace, and that the defendant broke and entered the plaintiff’s close or land. But as to the two first of these phrases, it is well settled that, if they ought to be inserted, their omission is a mere formal defect, of which advantage can be taken only by special demurrer; and as to the other, we are aware of no rule or decision which requires the injury to be described exclusively by those very terms, and are of opinion that any other language which imports a forcible and unlawful entry upon the land is substantially sufficient. That the language used in this count plainly describes such an entry, we have no doubt. It states that the plaintiff was in the £ *500 j lawful possession *of the land on which the acts complained of were done-; that those acts were the wrongful and wanton plowing and digging of a large and deep ditch on the land, and digging and drawing a large rock from the highway and placing the same and a large quantity of stones upon the land, and that those acts were done wrongfully and wantonly and without law or right. We can not doubt that a declaration thus setting forth, not by way of inducement, but directly and as a matter of complaint, acts of such a character, should be deemed to describe a cause of action for those acts, rather than for their consequences merely, and so to be a declaration in trespass rather than in case; and that a statement of those consequences should be viewed, not as a description of the cause of action upon which the plaintiff intends to rely as the principal ground of recovery, but as a statement of the result of the acts constituting such cause of action, and introduced only for the purpose of laying the foundation for a recovery of damages for those results, for which otherwise the pleader might suppose no recovery could be had in the action. There is therefore nothing erroneous in the judgment complained of. In this opinion the other judges concurred, except Hinman, J., who, having tried the case in the court below, did not sit. Judgment affirmed.