Lyford v. Toothaker , 39 Me. 28 ( 1854 )

Howard, J.

— The consumption of grass by the defendant’s cattle constituted the trespass proved. There is no evidence that'the freehold, or any fixture upon it, was injured. For such trespass this form of action can be maintained only by the tenant in possession. The injury in such cases, is to him, by an invasion of his rights and property, but no t to the landlord out of possession, though his title be indisputable.

From the evidence reported, it appears that Eoss, at the time when the trespass was committed, was in possession of the premises, as tenant at will of the plaintiff, and not as Ms servant or agent. Assuming then, that the plaintiff was the owner of the land at the time, he cannot maintain this action for acts of trespass which did not affect the value of his property. The legal remedy is for him only who suffers by the wrong. Bartlett v. Perkins, 13 Maine, 87; Davis v. Nash, 32 Maine, 411.

As it has been suggested by the defendant’s counsel that the report of facts is incomplete, we do not consider the question of title presented by the defendant’s brief statement. Plaintiff nonsuit.

Shepley, O. J., and Eioe, Hathaway and Cutting, J. J., concurred.