McCusker v. Mitchell

• Decision Date: 02 April 1897
• Citation: 36 A. 1123,20 R.I. 13
• Parties: McCUSKER v. MITCHELL.
• Court: Rhode Island Supreme Court

36 A. 1123

20 R.I. 13

McCUSKER

v. MITCHELL.

Supreme Court of Rhode Island.

April 2, 1897.

Trespass by Patrick McCusker against John Mitchell. Judgment for plaintiff, and defendant petitions for a new trial. Denied.

Hugh J. Carroll and T. W. Robinson, for plaintiff.

J. E. Goldsworthy and Bassett & Mitchell, for defendant.

PER CURIAM. The first exception is to the ruling of the court in permitting plaintiff to prove that he employed a civil engineer to survey and make a plat of the land in question to be used at the trial. In view of the fact that the defendant had denied the alleged trespass in his plea, and had disputed the plaintiff's line up to about the time of trial, we think the evidence was admissible. Indeed, at the trial the defendant's counsel expressly refused to admit the plaintiff's line to be where it was claimed by him, although he had pleaded a license from plaintiff to do the things complained of. The exception is therefore overruled.

The second exception is to the admission of evidence offered to show where the division fence was before the filling in complained of. This, of course, was proper, as tending to show both that the land belonged to the plaintiff, and also the extent of the damages sustained by him from the filling in, if unlawful. The exception is overruled.

The other exceptions to evidence as to plaintiff's title and the location of the boundary lines were not well taken, and must also be overruled.

As to defendant's point that the court erred in the remark, during the trial, "Let him state where he put his line; the jury will say whose land it is,"—it does not appear that any exception was taken thereto. But, even if there had been, it was perfectly proper, in view of the fact that the line was disputed as aforesaid.

Defendant also claims that the court erred in instructing the jury upon an issue not raised by the pleadings, as follows: "But it will be necessary for you, in your effort to ascertain whether a trespass was committed by Mr. Mitchell, to determine the question,—that is to say, to reach a reasonable conclusion,—as to where Mr. McCusker's line did run, and where Mr. Mitchell's line was placed." No exception was taken to this part of the charge, and hence it cannot be assigned as a ground for new trial. Sarle v. Arnold, 7 R. I. 582. But we see no objection to the instruction, in view of the pleadings taken as a whole, and of the evidence submitted as to the boundary line.

Another point taken by defendant is that the court erred in commenting on the defendant's pleadings, the language and manner thereof being calculated to prejudice the jury against the defendant. The language objected to was as follows: "Mr. Mitchell says, first, that he did not do it; he is not guilty. Then he filed a bill in abatement stating that he did do it, and that he had a right to do it because he had a license from the owner of the land to do it. Well, he took the stand, and he said he didn't do it, and his men didn't do it. He said he never authorized anybody to do it, and didn't know it was done. Some others of his witnesses testified to the same thing, but his plea says he did do it. Now, gentlemen, had he a right to do that? They admit by their plea in the case that the land, i. e. for the purposes of this trial, was not theirs; that it was Mr. McCusker's, because they say that they put that...