Mcconnel v. Kibbe1

• Decision Date: 31 January 1864
• Citation: 1864 WL 2904,85 Am.Dec. 265,33 Ill. 175
• Parties: MURRAY MCCONNELv.JARIUS KIBBE.1
• Court: Illinois Supreme Court

33 Ill. 175

1864 WL 2904 (Ill.)

85 Am.Dec. 265

MURRAY MCCONNEL

v.JARIUS KIBBE.1

Supreme Court of Illinois.

January Term, 1864.

APPEAL from Circuit court of Morgan County.

The facts are sufficiently stated by the court.

Murray McConnel, in person.

D. A. Smith and H. B. McClure, for the appellee.

BECKWITH, J.

The present action is on the case for an alleged injury to the reversionary interest of the plaintiff in a brick tenement, in the town of Jacksonville. The declaration contains three counts, each alleging in substance that the plaintiff, before the committing of the grievances mentioned, was the owner of so much of the tenement as was above the rooms upon the ground floor, through which there was a partition wall extending from the foundation of the building to the top of the same; and that the defendant was the owner of the rooms upon the ground floor of the building. That before the committing of the grievances mentioned, the plaintiff had leased so much of the tenement as belonged to him to one Fox for a term of ten years; and that afterwards, and while Fox was in possession under said lease of so much of the tenement as belonged to the plaintiff, the defendant, on a certain day named, and on divers other days from that time to the commencement of the suit, removed said partition wall between the rooms on the ground floor, thereby depriving the walls above of their necessary support, to the injury of the plaintiff's reversionary interest, and alleging as special damage the cracking and sinking of that portion of the tenement above the rooms upon the ground floor. The defendant pleaded first, not guilty, and second, not guilty within five years. The plaintiff replied to the second plea, that the grievances complained of had been continued from the time they were committed until the commencement of the suit. To this replication there was a demurrer, which was sustained. The plaintiff filed a second replication, alleging that the causes of action accrued within five years, upon which issue was joined. Upon the trial the plaintiff proved that he was the owner of the portion of the tenement described in the declaration as his property; and that while he was the owner thereof, and before the demise of the same to Fox, the defendant removed the partition wall between the rooms on the ground floor. The court instructed the jury that the plaintiff could not recover unless the wall was removed after the demise of the premises to Fox and while he was in possession of the same, nor for the original injury or for the subsequent damages, if the wall was removed more than five years before the commencement of the suit. The jury found for the defendant. It was the plaintiff's right to have his portion of the tenement supported by the wall which was removed. The removal of the support was an infringement of his right, for which he might have sustained an action without showing any special damage. The law infers damage from every infringement of a right. 1 Gil. 544; Fay v. Prentice, 1 C. B. 828; Sampson v. Hoddinett, 1 C. B. (N. S.) 590. The right infringed is property, and for its invasion nominal damages may be recovered, but such recovery is no bar to a suit for actual damages subsequently sustained where they did not take place before the commencement of the former suit. Successive suits for actual damages may be brought from time to time as the damages are sustained, and in each suit the party may recover such damages as he has sustained prior to its commencement, not barred by a previous recovery. The bar of the statute of limitations operates in the same manner. It bars the recovery of all damages, whether nominal or substantial, those inferred by law and special, which were sustained prior to the time within which the law requires an action for their recovery to be brought.

The declaration in the present case is for the nominal damages inferred by law from the infringement of the plaintiff's right, and for the actual damages subsequently sustained, which are alleged as a matter of aggravation. Each count states the wrongful act of the defendant in removing the partition wall, which act, it is alleged, was committed on divers days and times, whereby the plaintiff's right was invaded, from which the law infers damage, and by means of which act he has sustained actual damages. The allegation of special damages as a matter of aggravation is a substantive...