Quillen v. Betts

• Decision Date: 18 October 1897
• Citation: 17 Del. 53,39 A. 595
• Court: Delaware Superior Court
• Parties: EBE D. QUILLEN v. THOMAS W. BETTS

39 A. 595

17 Del. 53

EBE D. QUILLEN v. THOMAS W. BETTS

Superior Court of Delaware, Sussex County

October 18, 1897

Superior Court, Sussex County, October Term, 1897.

ACTION OF TRESPASS Quare Clausum Fregit, to recover damages for trespass by defendant upon plaintiff's land, located in Baltimore Hundred, Sussex County; consisting in the cutting down of certain trees, the tearing away of a fence, the filling up of a ditch on one part, and the opening of a ditch on another part of said land. For other facts see charge of court.

The defendant's pleas were, "Not guilty" and "Statute of limitations."

Under said pleas the defendant sought to introduce evidence tending to show that the title to the said land was in the defendant and not in the plaintiff. This was objected to by counsel for plaintiff, on the ground that under the plea of "Not guilty" such proof was not admissible, and could only be given under the plea of liberum tenementum.

Defendant's counsel contended that under the plea of "Not guilty," the general issue in the case, they could show not only that the defendant did not commit the trespass alleged, but also that he had the freehold title in the property. That the plea of liberum tenementum admitted the trespass, and also possession in the plaintiff, and was necessary if the defendant desired that the plaintiff should re-assign and set out definitely the circumstances under which the alleged trespass was committed.

1 Chitty's Pleading, *501; Stephen on Pleading, 174; Hunter vs. Lank, 1 Harr., 10; Clark vs. Hill, 1 Harr., 335; Proprietors of Monumoi Great Beach vs Rodgers, 1 Mass., 159; 2 Greenleaf on Evidence, Secs 613 and 625.

Verdict for defendant.

C. W. Cullen and C. M. Cullen for plaintiff.

Charles F. Richards, Robert H. Richards and R. C. White for defendant.

LORE, C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

LORE, C. J

In Chitty's Pleading, Vol. 1, *501 and *503, we find the rule laid down as follows:

"In trespass to real property, this plea formerly not only put in issue the fact of the trespass, but also the possessory title or right of the plaintiff; because the declaration, as before shown, states the plaintiff's title to the close, by the allegation that it was the close of the plaintiff, a matter which is plainly denied by the general issue, not guilty of the said trespasses, &c. It followed that before the recent rules--and we are not under those--any title, whether freehold or possessory, in the defendant, or a person under whom he claimed, might be given in evidence under 'Not guilty,' if such title showed that the right of possession, which was necessary in order to support trespass, was not in the plaintiff, but in the defendant, or the party under whom he justified."

* * * *

"There are some instances in which, although it was not heretofore essential, yet it might be judicious to plead specially the defendant's title or the title of the party under whom he had authority to commit the acts complained of."

The rule could not be expressed more tersely than Chitty puts it. Under that authority we are bound to admit this evidence. The defendant can show any title, either a possessory or freehold right, and can show a superior right to the party plaintiff. In other words, he can prove title under the plea of not guilty.

C. W. Cullen (questioning one of the witnesses): "Did the plaintiff show you a line on the southern end of his land?"

Objected to by defendant's counsel as calling for a statement and not an overt act of ownership on the part of plaintiff.

LORE, C. J:--

We think any act of ownership by plaintiff, indicating any line or corner of the land in dispute, would be admissible for what it is worth. It must be a claim, not a mere statement. Pointing out the boundaries of his land indicates an act of ownership.

The defendant was questioned by Mr. Richards as to the removal of the alleged division fence between the plaintiff's and defendant's land, and asked why the rails were removed: The defendant proceeded to state: "Mr. Quillen told me right there in the presence of witnesses to tear the old fence out; that it was no good; that it might do to patch up with, or to haul up and burn. He said 'Tear the old fence out and throw my half of the rails over in my field.' He pointed out the old ditch and said 'I might cut a new ditch on that line.'"

C. W. Cullen, for plaintiff objected, to the above line of testimony, on the ground that it tended to show license or privilege to remove the fence and cut the ditch, when there was no plea of license entered by the defendant.

LORE C. J:--

We recognize the correctness of your position, but it seems to us that the application is a little too close. As to this fence and this line, they have been spoken of on both sides, and they are intermingled and are almost inseparable in this case; and the statements about the dealings as to the old ditch and the new ditch and the old fence, are so mixed up, that we cannot make it any one man's land as a matter of license; and it must go in under the testimony that has been put in, so far as it relates to the location of the line.

PLAINTIFF'S PRAYERS.

The plaintiff prayed as follows:

First. If it be shown in this case, from the proof, that the defendant committed the trespass, or if he were present, aiding or abetting in the committing of it, or if before the trespass, he ordered, incited or advised the party who afterwards did it; or if there be proof that he committed any of them, it will be sufficient to maintain the declaration, and the plaintiff is entitled to recover.

1 Archbold's Nisi Prius., 406.

Second. It is not necessary for the plaintiff to prove that the act was done with wrongful intent; it is sufficient, if the plaintiff show that the trespass was done without a justifiable cause or purpose, though done accidentally or by mistake.

2 Greenleaf's Ev. Par., 622.

Third. If the plaintiff show that a line tree was cut down or a line fence was taken down or carried away, or cutting a ditch on the line without the consent of the adjoining owner, he is entitled to recover whatever damages he may have incurred from the proof presented.

2 Greenleaf on Evidence, Par., 617.

Fourth. The boundaries in a deed are to be first regarded; the courses and distances next.

Hunter vs. Lank, 1 Del. 10, 1 Harr. 10.

Fifth. Where common possession by two or more persons, is shown, the law adjudges the rightful possession to him who has the legal title.

Bartholomew vs. Edwards, 6 Del. 17, 1 Houst. 17.

Sixth. That the Court charge the jury that the defendant having withdrawn the plea of liberum tenementum and gone to trial, alone, on the plea of not guilty, had no right to set up by way of defence title in the lands or justification under said plea.

Seventh. That the court charged the jury that the plaintiff is entitled to recover in this action, though no special damage be proved, for nominal damages, if it has been proved that he went unlawfully upon said lands without leave or license.

Eighth. That the court charge the jury that the plaintiff is entitled to recover damages for any trespass of which he is found guilty upon said lands to the amount of the damage proved he has sustained.

Ninth. That the court charge the jury that if the evidence offered in this case discloses that the said fence was removed or the ditch dug, by consent or permission of the plaintiff, they must discard such testimony, because there is no plea in this case of license.

4 Archbold 496.

DEFENDANT'S PRAYERS.

The defendant prayed as follows:

First. That if the jury find, from the evidence, that the plaintiff was not in the actual possession of the land in dispute at the time of the alleged trespass, the plaintiff cannot recover in this action, but must resort to his action of ejectment.

Clark vs. Hill, 1 Del. 335, 1 Harr. 335; Daisey vs. Hudson, 5 Del. 320, 5 Harr. 320; Stean vs. Anderson, 4 Del. 209, 4 Harr. 209.

Second. That if the jury find, from the evidence, that there was a mixed possession of the lands in dispute by the plaintiff and defendant at the time of the alleged trespass, the plaintiff cannot recover in this action, but must resort to his action of ejectment.

Hunter vs. Lank, 1 Del. 10, 1 Harr. 10; Clark vs. Hill, 1 Del. 335, 1 Harr. 335.

Third. A practical location is binding in case of a dispute of an indefinite, uncertain, or obscure description; and an actual location of a division line between the adjoining lands of different proprietors, however erroneous, shall control the courses and distances in the title deeds, when acquiesced in for a length of time sufficient to bar and entry. Eng. Ruling Cases, Vol. 11, p. 231; Davis vs. Townsend, 10 Barbour 345.

Fourth. That the jury may determine from all the evidence and the circumstances proved in the case, whether the defendant has shown a complete chair of title to the land claimed by him, and that a deed, or any other legal mode of conveyance may be presumed from long possession and other circumstances which can be accounted for only on the assumption of a conveyance.

White vs. Loring, 24 Pick., 322; Melvin vs. Locks, 17 Pick. 262; Ryder vs. Hathaway, 21 Pick., 300-302.

Fifth. That the recitals in the deeds of Abram Daize from Solomon Evans, Solomon Evans from Elijah Evans, and Ebe Walter from Purnal Johnson, Sheriff, are competent evidence from which the jury may infer, if they are satisfied with the sufficiency of it, a conveyance to Thomas Drury of the lands now owned by Thomas W. Betts, or that Thomas Drury owned said lands.

White vs. Loring, 24 Pick., 322; Melvin vs. Locks, 17 Pick. 262; Ryder vs. Hathaway, 21 Pick., 302-309.

LORE, C. J., charging the jury:

Gentlemen of the...