Summary
In Uttendorffer v. Saegers, 50 Cal. 497, it was alleged that the defendant forcibly entered upon the premises and tore down the buildings, etc. It was claimed by the appellant that the action was trespass quare clausum.
Summary of this case from Rogers v. DuhartOpinion
Appeal from the District Court, Fifth Judicial District, County of San Joaquin.
The complaint alleged that on the first day of January, 1873, the plaintiff was the owner of and in the possession of the fractional northeast quarter of section four, township four south, range six east, Mount Diablo base and meridian, and of the improvements thereon, consisting of a dwelling-house, barn, blacksmith-shop, chicken-house, and fruit trees and grapevines, and that the defendant forcibly entered upon the premises and tore down the buildings and took and carried away the materials of which they were built, and dug up and carried away the grapevines. The answer was a general denial. The plaintiff had the verdict of a jury and judgment, and the defendant appealed.
COUNSEL
The averments of the complaint constitute the action trespass quare clausum fregit. ( Curtiss v. Hoyt , 19 Conn. 165; Rops v. Barker, 4 Pick. 242.) The plaintiff was bound to prove actual possession. (1 Chitty's Pleadings, marginal p. 174; Payne v. Clark , 20Conn. 30; Church v. Meeker , 34 Conn. 422.) The testimony as to the possession of the tenant was not new matter requiring to be pleaded. (Wilson v. Cleaveland , 30 Cal. 192.) The right of action for injury to land held under a lease is in the tenant. (Tobias v. Cohn , 36 N.Y. 363; French v. Fuller, 23 Pick. 104; Holmes v. Seely, 19 Wend. 507.)
John B. Hall, for the Appellant.
Baldwin, Roysden, and Buckley and Budd, for the Respondent.
The action is not quare clausum fregit, but it is an action by the owner for damage done to the inheritance. (Sedg-wick on Damages, 157.) The plaintiff was not required to show possession. ( Civil Code, Sec. 826.)
OPINION By the Court:
The action is trespass quare clausum. Its gravamen is the alleged possession of the plaintiff at the time of the entry of the defendant. In this view the offer of the defendant to show that a tenant of the plaintiff, and not the plaintiff himself, was in the actual possession at the time of the alleged trespass, should have been allowed. The record is somewhat confused upon the point; it appearing in the first instance that the offer was denied by the court upon objection made by the plaintiff, but at a subsequent stage of the case the evidence was, at least to a considerable extent, put by the defendant before the jury. But however this may be, the court afterwards refused an instruction asked by the defendant, to the effect that the plaintiff could not recover, if the land was at the time of the trespass complained of in the actual possession of others, who excluded the plaintiff therefrom. However, even if it could be considered as an action brought by a reversioner for injury done to the freehold, the duration of the term of the tenant in possession would be important evidence as affecting the measure of the damages to be recovered.
Judgment and order denying a new trial reversed, and cause remanded.