Avery v. Spicer

• Decision Date: 27 June 1916
• Citation: 98 A. 135
• Court: Connecticut Supreme Court
• Parties: AVERY v. SPICER et al.

98 A. 135

AVERY

v. SPICER et al.

Supreme Court of Errors of Connecticut.

June 27, 1916.

Appeal from Superior Court, New London County; William L. Bennett, Judge.

Action, under General Statutes, § 1097, to recover damages for unlawfully cutting trees, etc., by Sherwood G. Avery against Dwight Spicer and another. There was verdict and judgment for defendants, and plaintiff appeals. No error.

Charles W. Comstock and Lee R. Robbins, both of Norwich, for appellant. Hadlai A. Hull, of New London, and Charles V. James, of Norwich, for appellees.

PRENTICE, C. J. The plaintiff, claiming to be the owner and possessor of a certain tract of land, brings this action to recover damages as provided by section 1097 of the General Statutes for the alleged unlawful cutting and carrying away by the defendants of trees, timber, and poles growing upon said tract, and particularly described in the complaint. The complaint alleges that the plaintiff owned and possessed the laud, and that the defendant Ingalls, acting under the authority and direction of the defendant Spicer, unlawfully entered upon it and cut and carried away the trees, timber, and poles. The defendant Ingalls Justifies his acts of cutting and removal under the rights and authority of the defendant Spicer, and in their joint answer they aver that the latter owned in fee simple the land upon which the cutting was done, and then was and ever since had been in possession thereof. These allegations of title and possession in Spicer the plaintiff denies in his reply. The parties were thus at issue to the jury in respect to both the title to and the possession of the land.

It appeared by the undisputed evidence that the plaintiff and Spicer were the owners in fee simple of adjoining farms, and both were able to trace their respective titles as such owners back for a long period of years. The dispute between them as to the ownership of the locus grows out of a disagreement as to the location of the boundary line between their properties at the point in controversy. The plaintiff claims that he owns, as evidenced by his title deeds, up to a line beyond which, upon his side of it, the cutting complained of was done. The defendant's contention, on the other hand, is that Spicer's paper title extends his ownership to a line over and beyond which there was no cutting, that he and his predecessors in title had long occupied up to that line, and that he was so occupying at the time of the cutting.

No question presented by the appeal calls for the observance of a distinction between the defendant Ingalls, who did the actual cutting, and the defendant Spicer whose ownership, possession, and authority are pleaded in justification of it. For the sake of convenience, therefore, the former's connection with the alleged wrong may be ignored, and his acts treated as though done by the latter.

The evidence having shown this situation, the plaintiff requested the court to instruct the jury that the first question for their consideration was whether or not the plaintiff was the owner of the land in dispute, and that if they should find that he was such owner, and that the defendant Ingalls had entered upon it without his license and cut, the plaintiff was entitled to a verdict. The court did not comply with this request. On the contrary its instructions were in effect that the plaintiff, to entitle himself to a verdict, must prove that he was in actual or constructive possession of the land. In further elaboration of this subject it stated that it was not necessary that the plaintiff show actual possession, but that sufficient proof of possession would be produced by proof of title and the absence of actual and exclusive possession in another. The action of the court in thus charging and in refusing to charge as requested furnishes the chief ground of complaint on the appeal. That complaint is not that the instructions were erroneous in their statement of how possession sufficient to maintain the action might be shown. On the contrary, they were full and clear upon that subject, and all that could have been desired. The complaint is the narrower, but fundamental, one that, whereas the court was asked to tell the jury that the plaintiff could recover upon proof of title without proof of possession, it told them that the plaintiff must show possession, actual or constructive, as a prerequisite of recovery.

This complaint might be summarily disposed of by reference to the fact that the plaintiff himself alleges possession, and that upon the pleadings the parties were at direct issue upon that matter. The plaintiff, having put up his case and helped to frame the issues on the basis that possession was a material and issuable fact, is not in a position to charge the court with error in accepting the allegations made by him and the issues framed as material, and instructing the jury accordingly and in such a way that those issues could be intelligently decided by them. Knapp v. Tidewater Co., 85 Conn. 147, 157, 81 Atl. 1063; Jacobs v. Williams, 85 Conn. 215, 218, 82 Atl. 202, Ann. Cas. 1913B, 900.

But the court's action finds justification upon more substantial grounds. The complaint sounds in trespass. It alleges the plaintiff's possession of the land, an unlawful entry by the defendants, and acts done thereon by them to its direct injury by force. Here are all the essentials of an action quare clausum fregit if we revert to the distinctions and employ the terminology of the common-law system of pleading. That, however, is not of importance save as it shows that the complaint is one seeking recovery for a tort which lies within the broad field of trespass. It Is brought to recover damages resulting from a direct injury done by force to property in actual or constructive possession, and that spells trespass according to the common-law classification of personal actions. Actions of trespass for injuries to property were actions for the recovery of damages for wrongs done to the possessory right. They were founded on possession only. The gist of the action was the injury to the plaintiff's possession, and it was requisite that his possession, actual or constructive, be shown to authorize recovery. This was the rule of universal application. Toby v. Reed, 9 Conn. 216, 223; Church v. Meeker, 34 Conn. 421, 422.

The plaintiff's action being unmistakably one in the nature of trespass, the court did not err in giving a charge appropriate to it. But that is not all. Its instructions, when examined in the light of the facts before the court and regardless of the pleadings and the issues raised by them, were correct.

Passing by trespass with its requirement of possession as a prerequisite of recovery, there was in the common-law system a form of action providing for the redress of an injury suffered by one having an interest in property, but not having the...