Snider v. Myers

• Decision Date: 31 January 1869
• Citation: 3 W.Va. 195
• Court: West Virginia Supreme Court
• Parties: John M. Snider v. Sarah C. Myers, et al.

3 W.Va. 195

John M. Snider

v.Sarah C. Myers, et al.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. Where the averment in a declaration was that the defendant broke and entered the close of the plaintiffs, situated in the town of B., in the county of II., to which the plea of not guilty was entered, it is proper to admit testimony to show the breaking and entering of any close in that place, and as tending to show the manner of the breaking and entry upon the close, and the injury sustained thereby.

2. A party having title and right of possession may maintain trespass for injury done to real estate without being in actual possession at the time of the alleged trespass.

3. An affidavit for a new trial upon the ground of newly discovered evidence, is not sufficient unless it state that the party seeking the benefit of it has used due diligence to discover and procure the evidence before the trial, and discloses the facts he can prove and by whom he can do so.

This was an action of trespass quarc clausam. fregit, brought to August rules, 1866, in Hampshire county. The declaration averred that on the 1st day of September, 1863, the defendant with force and arms, &c, broke and entered the close of the plaintiffs, situated in the town of Romney, "and other wrongs to them the said plaintiffs then and there did, &c."

On the trial, had in February, 1867, the plaintiffs offered evidence to show the pulling down of the house on the close, to which the defendant objected, but his objection being overruled, he excepted. The plaintiffs proved title in themselves, but the property, it appears from the record, was vacant at the time of. its destruction, having been previously used by the forces of the United States for a bakery and for other purposes, whenever they occupied the town. It was also proved that shortly after the house was pulled down that the defendant fenced up the lot and used it until 1866.

There was such conflict of testimony as to the value of the property that the court refused to certify the value proved.

The defendant asked the court to instruct the jury that, if the plaintiffs were not in actual possession of the house and lot at the time of the alleged trespass they must find for the defendant. But the court modified the instruction so that if the jury believed they were not in possession, &c, they must find for the defendant. The court also instructed the jury, at the instance of the defendant, that the taking and carrying off of the property was not to be considered by the jury, but only the breaking and entering the plaintiffs' close and the damages necessarily arising therefrom.

The jury found for the plaintiffs, and assessed the damages at 300 dollars. The defendant moved for a new trial upon the ground of nnsinstruction by the court, and because of after discovered evidence. The substance of the affida-vit setting forth newly discovered evidence is given in the opinion of the judge.

The court refused to set aside the verdict and grant a new trial, and the defendant excepted and brought the case here by a writ of supersedeas.

C. J. Faulkner for the plaintiff in error. C. Boggess for the defendants in error.

Berksuire, J. This is an action of trespass quare clausam /regit. There is but one count in the declaration and but one trespass charged in it, viz: that the defendant with force aud arms broke and entered a certain close of the plaintiffs, situated in the town of Romney, in the county of Hampshire; and the usual alia enormia is added.

On the trial two bills of exceptions to the ruling of the court were taken by the defendant. The first is for allowing the plaintiffs to give evidence, under the declaration, of the pulling down of a certain house of the plaintiffs, which the court certifies in the bill of exceptions, constituted the act of breaking of said close. It is insisted by the counsel for the plaintiff in error that it was not competent for the plaintiffs, under the general charge in their declaration of breaking and entering the plaintiffs' close and the alia enormia clause, to give evidence of the destruction and value of the house, inasmuch as no notice of such a demand was given...