Bascom v. Dempsey
| Decision Date | 10 January 1887 |
| Citation | 143 Mass. 409,9 N.E. 744 |
| Parties | BASCOM v. DEMPSEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.H. Anderson, for plaintiff.
The plaintiff could not well maintain the action for the injuries to his reversionary interest, although the premises were in the possession of the tenants. Starr v. Jackson, 11 Mass. 519; French v. Fuller, 23 Pick. 106; Hastings v. Livermore, 7 Gray, 194. See Sumner v. Tileston, 7 Pick. 198. The case should have gone to the jury, and they should have determined by their verdict, under proper instructions from the court, as to the distinction between injuries to the possession and the reversion,--whether there was any injury to the reversion, and, if so, how much. Hastings v. Livermore, 7 Gray, 194; Baker v. Sanderson, 3 Pick. 348.
Pratt & Quinn and John Marren, for defendant.
The gist of the action--trespass quare clausum--is the violation of the plaintiff's possession. Whatever allegations there may be in the declaration of wrongful acts of such character as would give a cause of action to a reversioner, are alleged merely as aggravation, and not in such manner as to render them the foundation of the suit. Knapp v. Slocomb, 9 Gray, 73, 75; Phelps v. Morse, Id. 207; Gilbert v. Thompson, 9 Cush. 348, 350. The case is even stronger than those below cited, and comes fairly within the rule there laid down. Woodman v. Francis, 14 Allen, 198; Gooding v. Shea, 103 Mass. 360, 362; Dearborn v. Wellman, 130 Mass. 238.
OPINION
The ruling of the court was correct. If the plaintiff was not in possession, "except through his tenants," who "were then in actual possession," and the acts of the defendant were an injury to the reversion, the declaration should have so alleged the fact. Woodman v. Francis, 14 Allen, 198; Gooding v. Shea, 103 Mass. 360; Dearborn v. Wellman, 130 Mass. 238.
Exceptions overruled.
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