Zimmerman v. Shreeve ( 1883 )

Alvey, J.,

delivered the opinion of the Court.

This was an action of trespass guare clausum, fregit brought by the appellee, the plaintiff below, against the appellant. The plaintiff was only tenant for life of the premises upon which the alleged trespass was committed. The trespass complained of was the breaking the close, and the cutting down, and otherwise destroying, large quantities of growing timber thereon, and the carrying away of quantities of rails, posts, logs, tan bark, &c.

In the course of the trial below there were several bills of exception taken by the defendant; but the only question raised in this Court, as we gather fram the briefs submitted, is one with respect tee the measure of damages, and that is raised upon rthe 'prayers which were granted by the Court, at the instance of the plaintiff.

The gist of the action of trespass quare clausum fregit is the injury to the plaintiff's possession, and therefore, to maintain the action, it is essential that he be either in the actual or constructive possession of the locus in quo, at the time of the injury done. Gent vs. Lynch, 23 Md., 58. The damages will vary, and must be measured, according to the interest of the plaintiff in the locus in quo. This rule of damages is founded upon obvious principles of justice, as otherwise the plaintiff might get extravagant recompense for the injury to the land, when his interest therein was limited, or upon the eve. of expiring, and the defendant might he made liable for the same damages to different persons. It is well settled that the same acts of trespass may inflict injuries upon different rights, for which the defendant may he liable in several actions, to different persons, according to the nature and extent of the injury inflicted. In the case of a tenant, whether for life or for years, he may sue and recover for the injury to his possession and right of enjoyment, and the reversioner or remainder-man may sue and recover for any injury sustained to the estate in reversion- or remainder. And where there are several entitled in succession, as tenants for life, in tail, or in fee, they can recover only damages commensurate to the injury done to their respective estates. Herlakenden’s Case, 4 Co., 63; Briddlesford vs. Onslow, 3 Lev., 209; Jefferson vs. Jefferson, Id., 130; Jesser vs. Gifford, 4 Burr., 2141; Evelyn vs. Raddish, Holt N. P., 543, note; Twynam vs. Knowles, 13 C. B., 222; Lane vs. Thompson, 43 N. H., 320. The damages, therefore, must he assessed with reference to the extent of the several interests affected.

In the case of a tenant for life, he is entitled of right, to take reasonable estovers from the land, that is, wood for fuel, fences, agricultural erections, and other necessary improvements and repairs. But, under this right of estovers, the tenant cannot destroy or dispose of the timber, nor do any other permanent injury to the estates in reversion or remainder ; for that would subject him to the action and penalties of waste. Co. Litt., 41, b, and 73, a; 4 Kent Com., 73; 1 Washb. R. Pro., 115, 116, (3rd Ed.) The tenant must cut only such wood and timber as he may need for immediate use, and not in anticipation; and he must cut only such timber as is fit for the use for which he is allowed to take it. And, as a general principle, whatever wood or timber he is allowed to cut, he must use upon the premises, and not elsewhere. 1 Washb. R. Pro., (3rd Ed.) 116, and the cases there cited. If, therefore, this right of estovers, thus limited and restricted, be disturbed or impaired by a trespasser, the tenant for life is entitled to recover for the injury he may have sustained in respect of that right.

But in the present case, the lot trespassed upon was an outlying, unenclosed mountain lot, used exclusively for its wood and timber, and which constituted its main value. Such timber lots are generally used in connection with separate farm land, and as means of supplying the necessary wood and timber to the farm. In such case, the injury to the possessory right, by cutting and carrying away the wood and timber, consists in the damage done to the right to use such wood and timber by the life tenant, according to the customary mode of user; such user to be reasonable, and confined to such wood and timber as could be taken for ordinary estovers; and any trespass that disturbs and impairs such beneficial user by the tenant for life is an injury for which he may recover.

By the instruction, however, as given by granting the first and fifth prayers of the plaintiff, no reference whatever is made to the several interests or estates of the tenant .for life and that of the parties entitled in remainder; and though the cutting of trees, and the hauling away of rails, cross-ties, or other articles made of trees cut upon the premises, may have occasioned serious damage to the estate in remainder, yet, according to the instruction given, the whole amount of damage is required to be rendered to the plaintiff, the tenant for life. This, we think, was error. The jury should have been instructed with reference to the interest or estate of the plaintiff, and the injury thereto by the trespass of the defendant; and not have been allowed to award compensation jo the plaintiff for an injury done to the estate of another,

(Decided 9th February, 1883.)

All the prayers on the part of the defendant were rejected, and, we think, rightly so. They were all obnoxious to the objection that they required the jury to determine upon the legal construction of muniments of title, and thus to pass upon questions of law. Besides, they sought to exclude the plaintiff from the right to recover any damage whatever for the cutting and carrying away the timber from the land, though it might have disturbed or impaired his right thereto as tenant for life.

We shall reverse the judgment and award a new trial.

Judgment reversed, and new trial ordered.