McDodrill v. Pardee & Curtin Lumber Co.

• Decision Date: 13 April 1895
• Citation: 40 W.Va. 564
• Court: West Virginia Supreme Court
• Parties: McDodrill et al. v. Pardee & Curtin Lumber Co.

40 W.Va. 564

McDodrill

v.Pardee & Curtin Lumber Co.

Supreme Court of Appeals of West Virginia.

Submitted January 29, 1895

Decided April 13, 1895

1. Pleading Declaration Description op Premises-Trespass.

In the action of trespass to realty, or an action on the case in lieu thereof under the statute, the place where the acts complained of were dome is material and traversable, and the allegations thereof must in some way, either by the name of the land or close, by some or all of its! abuttals, by naming a particular locality, or in some other way, designate or describe such focus in quo with a reasonable degree of definiteness; otherwise the declaration will be bad on demurrer.

2. Guardian and Ward Ward's Estate.

Not a guardian by nature, but only a guardian appointed, who has given bond as and when required by law, is entitled to the possession, care, and management of his ward's estate.

3. Guardian and Ward Infant.

An infant who has no such guardian who has given bond may, for damage domeuto his real estate, sue by next friend.

4. Evtdence Deed Privity of Suit.

Where a deed made under aj1 decree by a commissioner or other authority is offered in evidence as a connecting link in the plaintiff's chain of title to land, it is necessary to introduce with it so much of the record of the suit in which (such decree was made as will satisfactorily show that the person having the legal title to the land conveyed, was a, party to the suit, and as will identify the land conveyed with the land decreed.

.5. Evidence Deed Rteaxgre to Deed

As against a party who claims against the deed and is a, stranger thereto, the recital of such facts therein, without more, is not evidence thereof, and the deed does not prove the transfer of the title to the land it purports to convey.

5. Co-tenants Waste.

Cotenants, who commit waste, are liable to each other jointly or severally for the damages; but the amount of a. recovery against a stranger or a grantee of a coteniant must be apportioned to correspond with his undivided interest in the land. A case where these principles are applied.

"W. E. IIaymond for plaintiff in error, cited 6 Rand. 556; 16 Mass. 348; 2 Munf. 282, 336, 518-20; 3 Munf. 273; 12 Leigh (old) 91, 204, 227; 76 Va. 169; 4 Min. Inst. pt. 1, 764-70; Li W. Va. 160; 24 W. Va. (506; 11 W. Va. 17; 14 W. Va. 157.

Alex. Dulin, of Dulin & Hall, for defendant in error, cited 8 W. Va. 259; 26 W. Va. 48; 12 W. Va. 1; 21 W. Va. 486; 16 W. Va. 777; 1 Add. Torts (Wood's Ed.) 98, 108, 195, 328-30, 362, 421, 447; 1 Washb. Real Prop. (4th Ed.) top pp. 129, 154 2 Min. Inst. (3d Ed.) top pp. 100, 598-601, 620-22, 631; 2 Tucker's Com. top pp. 186, 192, 193; Code, c. 92; Id. c. 103, s. 8; 6 Rand. 556; 6 Gratt. 301; 9 Graft. 273; 8 W. Va. 282; Code, c. 82, s. 18; 10 Am. & Eng. Enc. Law 670-81; 2 Add. Torts, § 1296; 1 Min. Inst. (3d Ed.) top p. 516; 1 Bart. Law Prac. 218, 221, 294, 295: 5 Gratt. 157; 8 Gratt. 6; 28 W. Va. 820; Code, c. 92; 31 W Va. 621, 632; 1 Black Judgm. 96-99, 101, 105; 28 W. Va. 584; 76 Va. 493; Hutch. Land Titles § 505; 2 Greenl. Ev. § 307.

LIolt, President;

This was an action of trespass on the case, brought in the Circuit Court of Braxton county, by Charles McDodrill and Martha Couger, an infant, suing by McDodrill as her next friend, against the lumber company, a corporation under the laws of the state of West Virginia, for trespasses committed on a certain tract of land, by cutting down and carrying away various growing trees. There was a demurrer overruled; plea of not guilty trial by a jury; a verdict for plaintiffs for five hundred dollars damages; motion for a new trial, motion in arrest of judgment, both overruled; judgment for plaintiffs; and this writ of error awarded defendant with all these rulings and others, excepted* to there, and assigned as grounds of error here.

First it is said the court erred in overruling the demurrer entered to the declaration as a whole and to each of the four counts. The first two counts aver a trespass committed by defendant in entering upon the lands and premises of plaintiffs and cutting down and carrying away various trees there found growing, and converting and disposing thereof to its own use. The third count avers a cutting down and destroying the saplings and undergrowth, the denudation of the land of all its valuable timber, to the permanent and lasting injury of the same. The fourth and last count avers that plaintiffs are the owners of and invested with the ownership of the immediate remainder in fee in said tract of land, subject to a certain life estate, and makes the same averments of trespass, whereby plaintiffs have been injured and damnified in their estate in remainder in and to said land and premises.

By section 8 of chapter 103 of the Code it is provided that "in any case in which an action of trespass will lie there may be maintained an action of trespass on the case." And chapter 92 provides, "Section 1: If a tenant of land commit any waste 1 hereon, or after he has aliened it, while he remains in possession, unless by special permission of the owner so to do, he shall be liable to any party injured for damages. Section 2: If a tenant in common, joint tenant, or parcener commit waste, lie shall be liable to his cotenants, jointly or severally, for damages. Section 3: If a guardian commit waste of the estate of his ward, he shall be liable to the ward, at the expiration of his guardianship, for the damages. Section 4: Any person entitled to damages in any such case may recover the same in an action on the case. * * *" And by section 14 of chapter 82 any minor entitled to sue may do so by his next friend.

The first point made on the demurrer is that the infant ran not sue for such trespass to his lands; it must be brought by the guardian; and for this is cited Truss v. Old (1828) 6 Rand (Va.) 556. For a full discussion of the various kinds of guardians and of the common-law doctrine as modified by our statuies, see Minor Inst. c. 17, pp. 460. 172, ct seq. It was held in the above case that guardians in socage and testamentary guardians, although they have no beneficial interest, yet have a legal interest, accompanied with the possession of the ward's land during the guardianship. If, therefore, a person trespass on the lands of an infant, and cut and carry away his trees, without the license of the guardian, the ward can not maintain an action of trespass therefor, but the guardian may; and he must account to the ward for the damage recovered. And section 7 of chapter 82 of the Code provides that "every guardian who shall be appointed as aforesaid and give bond as required shall have the custody of his ward and the possession, care and management of his estate, real and personal." If there be a father, he is guardian by nature; if the father be dead, then the mother succeeds as guardian by nature; and though, as such, charged with the custody of the child's person, and, it may be, with his education, they do not have, as such, the possession or care of his estate. See 1 Minor Inst. p. 472. In such case the doctrine of Truss v. Old, 6 Rand (Va.) 556, would not apply, for the reason and foundation of the rule do not exist. Nothing on the face of this declaration shows that the infant lias any guardian at all; certainly nothing that she has a guardian who is entitled to the possession and care of her estate; and I know of no rule which requires or authorizes such presumption to be made in passing upon a demurrer to her declaration; and section 4 of chapter 92 of the Code (page 706) provides that "any person entitled to damages in such case (that is, a case of waste) may recover the same in an action on the case."

Is this declaration good in other respects on general demurrer? It seems to have been drawn in the ancient mode of declaring in trespass qua re clausum fregit with the expectation of making a new assignment. This mode had its origin in the practice which had become general of suing out only general clausum fregits. As the law was held to be that upon such general writs the plaintiff either could not at all, or could not to any conclusive effect, count of any close in certain, the mode of declaring generally, pleading the common bar (i. e. naming any place as the locus in quo and setting up the plea of liberum tenementum) and making a new assignment seems to have been universally adopted. See Martin v. Kesterton (1776) 2 W. Bl. 1089; 4 Bob. Prac. 584; Cooke v. Thornton (1827) 6 Rand. (Va.) 8. But as this practice was circuitous and full of delay, it has been plainly modified, if not done away with, in this state, by section 32 of chapter 125 of the Code.

In such action it is necessary to allege the locus in quo, for such fact is plainly traversable; and being necessary to be alleged, it must be given to a reasonable degree of certainty. Here the allegation in the first three counts is that on the day of, 1890, at the county of Randolph, state of West Virginia, the said defendant, without the consent or approval of plaintiffs, wrongfully and unjustly entered upon the lands and premises of the plaintiffs, to wit, a tract of three hundred and forty four acres, more or less, of land, situated on Elk run, in Randolph county, West Virginia, and wrongfully, etc., cut down, etc., one hundred poplar trees, etc. It is not called the close of any one, or designat- ed as in the occupation of any one, or given any name or designation, nor metes or bounds of any kind, in whole or in part. Any one or all of these modes of designation would have sufficed, and could have been easily used in this case, as appears in this record, as it appears to be the land conveyed to Lewis Couger, Peter Conger and John Conger by Peter Conrad, by deed dated October 29, 1853, on which Jeremiah Conger then lived. It was known and called the "Jere Conger Place" or "Jere Couger Land," described as on Elk river at the "mouth of the Valley fork." It was so described in plaintiff's...