Payne v. Clark , 20 Conn. 30 ( 1849 )

Storrs, J.

Each of the parties in this case claimed, on the trial, to have had title to the locus in quo, when the trespasses complained of were committed, through conveyances from the former owners, and the defendant also, by disseisin. The defendant further claimed, that if the legal title was in the plaintiffs, the defendant was then in the exclusive possession of the land, and therefore, that the plaintiffs could not maintain this action ; and he complains, that the court not only omitted to charge the jury, that possession in the plaintiffs was necessary, but, on the contrary, instructed them, that a legal title in them, without such possession, was sufficient to entitle them to recover. If this is the import of the charge, it was clearly erroneous, since no principle is better settled, than that the plaintiff must be in possession of the land, when the injury is committed, in order to maintain an action of trespass quare clausum fregit.

But we think, that the defendant has misconceived the true meaning of the charge, and that, on a just construction of it, it is not obnoxious to the objection which he makes to it. Considering the last clause of it as an isolated proposition, unconnected with what had before been stated, it would indeed literally import, that if the plaintiffs, being disseised of the land, retook the possession of it, they might maintain this action for a trespass committed thereafter, and at a time after they should have ceased to retain the possession. But, in order to ascertain the true import of the charge, it should be all taken together, since it consists of several propositions connected with and explaining each other. On the same rule of construction by which this last clause is made to express the principle that the plaintiffs could recover for a trespass committed after possession was thus retaken by them, although that possession had been divested before its commission, it might also be made to mean, that they could recover for it, even although their title, as well as their possession, had ceased when the trespass was committed; for the words, "at any time thereafter,” i. e., after such retaking of possession by the plaintiffs, are sufficiently broad and indefinite to reach to that extent. Yet no one would suppose, that such was the idea intended to be conveyed, when the previous parts of the charge, in connexion with which the last part of it was announced, are considered.

The motion shows, that the defendant claimed, that he was in possession of the land, disseising the plaintiffs, when the trespasses complained of were committed; and that, under those circumstances, the plaintiffs could not recover for those trespasses, even if they had proved that they then had a legal title to the land ; and that, “in regard to the right of the plaintiffs to maintain this action, if they had been dis-seised, and were not in possession at the time when said trespasses were claimed to have been committed, the court charged the jury in conformity with the defendant’s claims.” If nothing had been superadded to this part of the charge, it would have exactly accorded with the claim of the defendant, that it was requisite that the plaintiffs should be in possession when the trespasses were committed. But the court proceeds, in continuation of that part of the charge, to say, that if the plaintiffs then had title to the land, their having been previously disseised thereof, by the defendant, would not prevent their recovery, if they had, previous to said trespasses, retaken possession, so that they were in possession when said trespasses were committed. This remark (to which no exception is taken,) plainly strengthens what had before been said as to the necessity of the plaintiffs’ being in possession when the trespasses were committed, and was only intended to obviate any difficulty in the way of their recovery arising from the circumstance of their having been before disseised. The charge then concludes, by stating, that although a simple reentry on the land would not revest the possession in the plaintiffs; yet if they, having title to the land, (for such is the case supposed in the preceding part of the sentence,) went upon the land in 1843, which was before the trespasses complained of, and, as owners thereof, retook the possession, and remained there some two or three days, cutting and carrying away the wood and timber, keeping the defendant out of possession, and forbidding him from entering - on the same, such a retaking of possession would enable them to maintain this action for any act of trespass committed by the defendant, at any time thereafter. The object of this remark obviously was, to preclude the plaintiffs from the benefit of a simple reentry, unaccompanied with a retention of the possession ; and although it did not, in so many words, make such retention necessary, when the trespasses were committed, such, we think, was its clear import; and it could not be otherwise understood, by ordinary minds. The charge had previously, as we have seen, asserted and repeated the principle, that, in order to recover, the plaintiffs must have been in possession when the trespasses were committed ; and in the sentence next preceding that which we are now considering, had stated the effect of the plaintiffs’ regaining possession after a disseisin, as being a sufficient possession, if continued to the time of the commission of the trespasses ; and this clause, to the generality of which exception is taken, was intended to guard against the inference by the jury, that a retention of the possession was not necessary after such reentry, and not to convey the idea, that such retention need not be continued to the time of committing the trespasses. Hence, it appears, that there is no inconsistency between that part of the charge in which the plaintiffs’ possession of the land is stated to be necessary when the trespasses were committed, and the subsequent part of it, in which, it is claimed, that the court omitted or denied that principle. And it is not to be presumed, that the jury, in their verdict, disregarded, or did not give full effect to, that principle, which had been so clearly stated and repeated to them, by the court.

It has been suggested, that the court below erroneously instructed the jury, that the acts of the plaintiffs in remaining on the land two or three days, and cutting and carrying away the wood and timber thereon, when they went upon the land in 1843, and forbidding the defendant from entering upon it, constituted, as matter of law, a retaking of the possession by the plaintiffs. We do not so interpret the charge. The court had informed the jury, that, if the plaintiffs had been disseised, a retaking of the possession, and retention of it when the trespasses were committed, was necessary in order to maintain this suit; and that a mere reentry, without such retention, would not be sufficient; and these acts were mentioned in connexion with this part of the charge, as being evidential, but not conclusively so, of the fact that the plaintiffs took and retained possession, and also in order to point out more clearly the difference between the mere reentry which had been mentioned, and one followed by a retention of the possession. This being the true construction of this part of the charge, its correctness is not questioned, and is too obvious to require vindication.

A new trial, therefore, is not advised.

In this opinion the other Judges concurred.

New trial not to be granted.