Woodcock v. City of Calais

• Decision Date: 06 June 1878
• Citation: 68 Me. 244
• Parties: HARRIET WOODCOCK v. CITY OF CALAIS.
• Court: Maine Supreme Court

68 Me. 244

HARRIET WOODCOCK v. CITY OF CALAIS.

Supreme Judicial Court of Maine.

June 6, 1878

ON EXCEPTIONS AND MOTION by the defendants, to set aside a verdict for the plaintiff of $150.

TRESPASS by the defendants, for removing the plaintiff's bank wall, fence and earth. The case is stated in 66 Me. 234.

At the trial the defendants offered certain records of the town of Calais in the year 1822, in regard to a location of a highway, which was excluded on the plaintiff's motion but the exceptions do not show what the records were.

The presiding justice instructed the jury thus: " Upon a careful examination of the records introduced, and the law as it existed in 1822, at the time the acts were done, I am satisfied that the records do not show a compliance with the requirements of law; and no person's and is to be taken for public use without such compliance. Having become satisfied that the law was not complied with by that record I deem it my duty to exclude it, and I instruct you to exclude it entirely from the consideration of this case."

Also " If you are satisfied that the plaintiff was in possession of the premises upon which the acts were done at the time, by having them inclosed by her fence as a part of her lot, and Mr. Smith, acting for the city, entered upon the premises in her possession, I instruct you that the burden is upon the defendants to show that they had a justification to enter in that manner and do the acts complained of."

Also, " In this action the measure of damages is what damage she suffered by reason of the acts complained of up to the time of the commencement of the action, September 4, 1875; and it is said that the entry by the defendants was in the last of June of the same year. For any damage she has sustained since that time by reason of having the erection continue there by the city, she may have the right of another action, if they were unlawfully placed there. Now, if the injury was unlawful, one of the elements of damage is the taking of the earth and the stone and carrying them away. What damage did the plaintiff sustain by reason of that? Another element of damage is the loss of the use of that portion of her premises from the time the acts were done to the date of the writ. And these are the material elements of damages to be considered in this suit."

The verdict was for the plaintiff; and the defendants filed a motion to set it aside, and also alleged exceptions.

G. A. Curran, city solicitor, with J. Granger, for the defendants.

E. B. Harvey, with A. McNichol, for the plaintiff.

VIRGIN J.

This action was before this court last year on report, which stipulated that, " if the city is liable for the trespass," --the removal of the fence, etc.,-- " the action to stand for trial." The court then determined that the commissioner who removed the plaintiff's fence was acting as the agent of the city, by its directions, and that the rule of respondeat superior was applicable. Woodcock v. Calais, 66 Me. 234.

The case went back to trial, the jury returned a verdict for the plaintiff, assessing the damages at $150; and now the defendants bring the case before us on motion and exceptions.

I. The defendants contend that the exclusion of the record of an attempted location was erroneous....