French v. Robb

• Citation: 51 A. 509,67 N.J.L. 260
• Parties: FRENCH v. ROBB.
• Decision Date: 03 March 1902
• Court: United States State Supreme Court (New Jersey)

51 A. 509

67 N.J.L. 260

FRENCH

v. ROBB.

Court of Errors and Appeals of New Jersey.

March 3, 1902.

(Syllabus by the Court.)

Error to supreme court.

Action by Thomas E. French against Thomas Robb, executor, and others. Verdict finding defendant Robb not guilty, and plaintiff brings error. Reversed.

Samuel H. Richards, for plaintiff in error.

James M. E. Hildreth, for defendant in error.

DIXON, J. The plaintiff brought an action of ejectment in the supreme court against the Delaware & Atlantic Telegraph & Telephone Company, Joseph Q. Williams, receiver of the Franklin Electric Light Company, and Thomas Robb, executor of William P. Robb, deceased, for the possession of a plot of land five feet square within the limits of Washington and Jefferson streets in the city of Cape May. The receiver did not plead, but the telegraph company and Robb each pleaded not guilty. At the trial in the Cape May circuit of the issues thus raised the facts appeared as follows: The plaintiff, as owner of the land abutting upon the streets, owned also the locus in quo, subject to the public easement. Under an ordinance and a contract between the city of Cape May and the Franklin Electric Light Company, dated November 30, 1897, and running to July 23, 1902, the company became bound to light the streets of the city with electricity, and to furnish, erect, and maintain all necessary poles, wires, etc.; the location and erection of the appliances in the streets being subject to the approval of the city council. Accordingly a pole was placed about the center of the locus in quo, and wires strung thereon. In June, 1899, the electric company had passed into the hands of a receiver, and, the pole being then in poor condition, the receiver permitted the telegraph company to erect a new pole in its stead, and to string thereon a telephone wire; the pole, however, to be the property of the electric company. Afterwards, by virtue of an order of the court of chancery, the plant of the electric company was turned over by the receiver to the defendant Robb, and when this suit was brought he was carrying out the contract with the city for lighting the streets, and for that purpose he was in possession and use of the pole and some of the wires. Other wires on the pole were used by him for private lighting, and the telegraph company was using its wire for telephone purposes. On this state of facts the trial court directed a verdict for the plaintiff against the telegraph company, of which no complaint is now made; and also directed a verdict in favor of Robb for so much of the land as was occupied by the pole, and instructed the jury to find further in his favor for so much of the land around the pole as they should think reasonably necessary to be used in maintaining and taking care of the pole. To such direction and instruction the plaintiff excepted, and, the jury having found Robb not guilty, the plaintiff seeks to reverse the consequent judgment.

Before considering the special aspects of the controversy, it may be helpful to advert to the real nature of an action of ejectment. Originally it was designed to recover only damages for the wrongful ejection of the plaintiff from the possession of land in which he had a term of years. Later the recovery was extended to the possession of the land. To succeed, the plaintiff was required to prove a lease to himself for a term of years, made by a lessor entitled to the possession, and on the land when the lease was made, his entry under the lease, and ouster by the defendant. The action was usually instituted against a person not interested in the land, called the "casual ejector," who gave notice of the suit to the actual possessor, and he, on application to the court, was substituted as defendant But as a condition of such substitution, the court required him to stipulate that at the trial he would confess the lease, entry, and ouster alleged by the plaintiff, thus leaving the only fact to be proved by the plaintiff the title of his lessor. If, however, the claim of the applicant was such as would not warrant him in ousting the plaintiff, and yet would justify his own possession, as if he claimed only a joint tenant with the lessor, then he stipulated to confess ouster of the plaintiff only in case the plaintiff should prove actual ouster of the lessor. If, at the trial, the plaintiff showed such title in his lessor as made the confessed ouster wrongful; or if, when ouster was only conditionally confessed, he showed an actual ouster of the lessor, or a title against which any possession by the defendant was wrongful,—then he recovered damages and possession; otherwise his suit failed. Thus the technical issue in the case was always whether the defendant had wrongfully ousted the plaintiff. Under our statute the technical issue remains the same, although presented by a different procedure. The real claimant, the old lessor, is the plaintiff, and his complaint is that the defendant, wrongfully deprives him of possession. The...