Fowler v. Owen

• Decision Date: 26 July 1895
• Citation: 68 N.H. 270,39 A. 329
• Parties: FOWLER v. OWEN.
• Court: New Hampshire Supreme Court

39 A. 329

68 N.H. 270

FOWLER

v. OWEN.

Supreme Court of New Hampshire. Rockingham.

July 26, 1895.

Exceptions from Rockingham county court.

Trespass quare clausum fregit by Richard Fowler against Reese Owen for the recovery of damages for acts done January 1, 1887, and on divers days between that day and the date of the writ, March 19, 1892, and of the expenses incurred in regaining possession of the land from the defendant and his tenants and servants. Verdict for the plaintiff. Subject to the defendant's exception, evidence was received tending to show the following facts: In 1890 the plaintiff recovered judgment in an action of trespass against Asa Beckman for building a house upon the premises. Owen, claiming to own the premises, and that Beckman was his tenant, defended the action. The question of title was the only one tried. The judgment has not been satisfied. Owen and Beckman retaining possession notwithstanding the judgment, the plaintiff filed a bill in equity against them, praying for an injunction to restrain them from committing further trespasses, and to compel them to leave the premises. The bill was taken pro confesso, and a decree made enjoining the defendants to leave the land forthwith, and desist from committing further trespasses upon it and ordering that a writ of possession be issued against them. Copies of the decree were given to them, and a writ of possession issued, by virtue of which an attempt was made to put the plaintiff in possession, but without success. In a subsequent proceeding against Owen, Beckman, and another for violating the injunction, it was found that they were guilty of contempt. As a result of all these proceedings, the plaintiff got possession of the premises in 1891. See CG N. H. 421, 30 Atl. 1117. It was ruled, subject to the defendant's exception, that the plaintiff was entitled to recover the expenses necessarily incurred and actually paid by him in the equity suit, and the proceeding for violating the injunction. The defendant offered to show that in 1742 the title to the premises was in the province of New Hampshire, and that it has ever since been in the province and the state. The evidence was excluded, subject to the defendant's exception. Judgment on the verdict.

Samuel H. Goodale and John S. H. Frink, for plaintiff.

Samuel W. Emery, for defendant.

CHASE, J. At common law, after a party obtains judgment in ejectment he may maintain trespass for mesne profits, and recover, as a part of the damages, the costs necessarily incurred in the action of ejectment. 1 Chit. PI. 192, 196; 2 Chit. Pl. 870; Aslin v. Parkin, 2 Burrows, 665; No well v. Roake, 7 Barn. & C. 404; Symonds v. Page, 1 Cromp. & J. 30; Baron v. Abeel, 3 Johns. 481. In Nowell v. Roake a judgment recovered by the defendant in ejectment was reversed upon a writ of error, and it was held that the costs in the writ of error, taxed as between attorney and client, were recoverable as a part of the damages in the action for mesne profits. Lord Tenterden, C. J., said, "The expenses incurred in the court of error were part of the damages sustained by the plaintiff by reason of his having been wrongfully kept out of possession by the act of the defendant." The right to recover the expenses of the former action depends upon the necessity for the action, and not upon its particular form. It is immaterial that the plaintiff's preliminary proceedings were in equity, instead of law. The necessary consequence of the defendant's acts was to compel the plaintiff to resort to an equitable or legal action in order to obtain his rights. It is...