Slye v. Guerdrum ( 1907 )

Mr. Justice Robb

delivered the opinion of the Court:

In the first assignment of error it is contended that the plaintiff should have declared in case, instead of in trespass. The defendant is not in a position to insist upon this assignment. It is, of course, axiomatic that at common law the gist of the action of trespass quare clausum fregii is injury to the possession, and that, generally speaking, the plaintiff must show actual or constructive possession at the time of the trespass. Many of the States, however, have abolished the nice distinction between .trespass and ease, and other States have by statutory enactment permitted great liberality of amendment. The Code of the District, see. 399 (31 Stat. at L. 1252, chap. 851), empowers the trial court, “at any stage of the case, to allow amendments of writs, pleadings, or other papers in the cause.” It is not denied that the plaintiff was the owner of the premises upon which this trespass was committed, and it is not denied that she had a right of action against the defendant, the only contention being that she should have declared in case, instead of in trespass. But by introducing evidence in his own behalf, it is tear that the defendant waived this point. In Accident Ins. Co. v. Crandal, 120 U. S. 530, 30 L. ed. 742, 7 Sup. Ct. Rep. 685, which was a suit upon an accident policy, the defendant, at the close of the plaintiff’s evidence moved for a verdict because “under the law and the evidence in the case the plaintiff was not entitled to recover.” The motion was overruled, and the defendant then introduced evidence in its own behalf. No-special instructions were asked, and no exceptions were taken to the court’s charge to the jury. Mr. Justice Gray said: “The refusal of the court to instruct the jury, at the close of the plaintiff’s evidence, that she was not entitled to recover, cannot be assigned for error, because the defendant at the time of requesting such an instruction had not rested its case, but after-wards went on and introduced evidence in its own behalf.” Main v. Aukam, 4 App. D. C. 51; Hazleton v. Le Duc, 10 App. D. C. 379; Trometer v. District of Columbia, 24 App. D. C. 242.

Had the defendant in the present case insisted upon his objection to the form of the action, the plaintiff might have obtained leave to amend, and the difficulty would have been overcome. But he did not insist upon his objection, and therefore waived it. It is possible, too, that if the record contained the substance of all the testimony we might find evidence to sustain a verdict based upon the declaration as filed. United States v. Cooper Queen Consol. Min. Co. 185 H. S. 497, 46 L. ed. 1009, 22 Sup. Ct. Rep. 761.

The second assignment of error is without merit. It is not even necessary for us to inquire into the validity of the building regulation relied upon by the defendant, for the reason that the regulation does not purport to authorize the destruction of a division hedge by one party, much less a hedge entirely upon the premises of the adjoining owner. There was no error,, therefore, in excluding this regulation.

Nor the reasons given above, the judgment will be affirmed, with costs, and it is so ordered. Affirmed.