Ackerman v. Ellis

• Decision Date: 20 April 1911
• Citation: 79 A. 883,81 N.J.L. 1
• Parties: ACKERMAN et al. v. ELLIS.
• Court: New Jersey Supreme Court

79 A. 883

81 N.J.L. 1

ACKERMAN et al.

v. ELLIS.

Supreme Court of New Jersey.

April 20, 1911.

Action by James T. Ackerman and others against Aurora B. Ellis. Upon demurrer to the declaration on several counts. Demurrer to the first count overruled, and demurrer to the second and third counts sustained.

Argued November term, 1910, before GUMMERE, C. J and TRENCHARD and MINTURN, JJ.

James T. Ackerman, pro se.

Michael Dunn, for demurrant.

GUMMERE, C. J. The declaration in this case contains three counts, and the defendant demurs separately to each of them.

The first count avers that the plaintiffs were lawfully in possession as tenants in common of a certain tract of land in the township of Midland, in the county of Bergen; that the defendant, contriving and wrongfully intending to injure the plaintiffs in their possession, use, occupation, and enjoyment of the premises and to render the same barren and unfit for habitation, use, tillage, and pasturage, wrongfully and injuriously planted or caused to be planted in a careless, negligent, and improper manner a great number of poisonous or noxious trees, to wit, 35 spruce trees and other poisonous or noxious trees, in a row, so close to the property line of the plaintiffs that the roots, branches, limbs, and leaves thereof grow, hang over, and fall upon the plaintiffs' premises, whereby the premises are rendered barren, incommodious, and unfit for use. The second count avers that the defendant wrongfully and injuriously maintained, and continues to maintain, similar trees adjacent to the plaintiffs' property line and with like injurious result to plaintiffs' premises. The third count is similar to the second, averring that the defendant maintains trees of the character mentioned so close to the line of the plaintiffs' land as to be a nuisance unless they are so trimmed and curtailed as to prevent them from overhanging or encroaching upon the plaintiffs' premises, and that the defendant neglects to trim and curtail them so as to prevent such encroachment or overhang.

Several grounds of demurrer to the first count are specified. The first one argued, or rather suggested, in the brief of counsel, is that the count is defective because it fails to aver that the plaintiffs are the owners of the fee of the land which they claim has been damaged by the wrongful act of the defendant; the injury, it is said, being to the fee and not to the possession. If ownership was necessary to be averred, the statement of the count that the plaintiffs were in possession as tenants in common is, we think, a sufficient averment of that fact It is not necessarily, however. A nuisance, like a trespass upon land, is an injury to the possession and creates a right of action in favor of the occupant. So distinctly is this the fact that the owner of land which is in the possession of his tenant is liable to that tenant for a nuisance created by him upon adjacent land which affects injuriously the tenant's leasehold interest. Alston v. Grant, 3 El. & Bl. 148.

The principal ground of demurrer to this count is that "it fails to state that the defendant had at the time of the planting of the trees any interest whatever in the land upon which they were planted either as tenant or owner." The argument is that no liability rests upon the defendant to answer for the damage of which the plaintiffs complain unless she had some interest in the land upon which she planted or caused to be planted these trees; that, if in doing what she did she was acting merely as the agent of the owner or tenant, she is not answerable to the plaintiffs for the injury done to their property; and that, as the rules of pleading require that everything shall be taken most strongly against the pleader, it must be presumed that she was acting as the agent of the owner or tenant. This argument, however, is based upon an erroneous conception of the law.

A person who...