Moore v. Boyd , 24 Me. 242 ( 1844 )

The opinion of the Court was drawn up by

Shepley J.

This case is presented for consideration on a report by the presiding Judge, and on a motion for a new trial, because the verdict was against the weight of evidence. There appears to be an error in the testimony of some of the witnesses respecting the time, when certain acts were done ; and it may not be easy to reconcile the whole of the testimony ; or to determine the precise time, when certain events occurred. But it will not, it is believed, be difficult to state the order of events, with the material facts attending them. There is no sufficient reason to doubt, that a verbal agreement was made between the plaintiff and defendant, during the latter part of the month of April, 1840, for a lease of the saw mill to the plaintiff for the term of one year, for the purpose of sawing paving blocks. And that the plaintiff, by his agents, entered and made the alterations, and introduced the machinery necessary for the performance of that business, the defendant having a full knowledge of it and making no objection to it; and that the workmen commenced and continued for a time to saw the blocks. The defendant afterward entered into the mill, probably the latter part of the month of June, forbid the workmen to saw, and directed them to shut down the millgate. The order was obeyed. And one of the workmen proceeded to Bangor and informed the plaintiff’s agent, Veazie, of these proceedings. While he was absent for this purpose, the “cutting off saw” was removed from the mill, probably by the defendant, or by his order, as it was afterward produced by his agent, who states, that it was found in a store occupied by the defendant. After this the defendant appears to have left that place on a journey to Boston, and to have left the mills in charge of Ellis as his agent. The agent of the plaintiff then visited the mill and obtained permission from Ellis to occupy it as before, until the defendant returned. He obtained the saw from Ellis, and the workmen commenced again- to saw in the mill, and so continued until after the defendant returned. The defendant again entered into the mill probably about the middle of the month of July, forbid the workmen to saw, and took out the “ cutting off saw” and the mill chain. The agent of the plaintiff being informed of it, again visited the mill and endeavored to induce the defendant to permit him to continue to use it, but without success. He then informed him, that he should “get a chain and saw and carry on the milland he did so, and the workmen continued to saw in the mill until the fourth day of the next August, when they were arrested by an officer and removed from it by virtue of a legal process. On the following day the mill “was planked up,”

The action is trespass quare clausum. The declaration alleged a trespass on the fourth, aud fifth days of August, 1840. The plaintiff was permitted to amend by alleging the same acts to have been committed on the seventeenth day of the preceding month. It is not necessary in this form of action to prove the trespass to have been committed on the day alleged. Although the amendment was unnecessary, it might well be permitted.

It remains to consider the legal effect of these proceedings, and the rights of the parties arising out of them. The plaintiff had acquired only the rights belonging to a lessee at will. The defendant might terminate those rights at his pleasure. He could do no illegal act under pretence of doing it. It will not be important to consider the effect of the entry made by the defendant in June, if his agent could authorize the agent of the plaintiff to resume and continue the occupation. The entry made in July would then have the effect to determine the estate of the plaintiff, and to restore the legal possession to the defendant in a qualified manner, subject to the right of the plaintiff to remove his property within a reasonable time. But the plaintiff could have no longer any other rights, than those of ingress, egress, and regress, for a reasonable time to lake care of and remove his property. He could no longer lawfully continue the occupation for the purpose of sawing his paving blocks. Davis v. Thompson, 1 Shepl. 209; Curl v. Lowell, 19 Pick. 25. An entry may be lawful and justifiable for one purpose, and unlawful and unjustifiable for another. While an entry to determine an estate is lawful, yet if the tenant should be thrust out with violence, or without allowing him a reasonable time to remove, that act would be unlawful, and would be such a violation of his right of occupation for a special purpose as to enable him to maintain the action of trespass quare clausum. Ellis v. Paige, 1 Pick. 43. In this case the defendant would then appear to have violated the plaintiff's right of occupation for a special purpose, by the removal and detention of the “ cutting off saw,” (it being the property of the plaintiff) when he made the entry in July. And he could not therefore fully justify that entry and his proceedings under it. The agent of the plaintiff, instead of submitting to the determination of his estate and proceeding to make preparations for a removal of his property, as he should have done, “ told the defendant he should get a chain and saw and carry on the mill.” He did so; and withheld the possession from the defendant, not for the special purpose of removing the plaintiff’s property, but for the purpose of continuing to use the mill, as before, for sawing the blocks. And he so continued to occupy the mill from the seventeenth day of July to the fourth day of August, without making apparently the least preparation for removal of the property and without exhibiting any indications of such an intention. And from his own declarations it would seem to be clearly proved, that he intended to persist in the course he had commenced. The defendant was not obliged to submit to such a declared and open violation of his rights. He might lawfully use the means necessary to prevent it, and might, if necessary for that purpose, close up the mill. His entry and proceedings therefore on the fourth and fifth days of August were not necessarily illegal, even if a reasonable time had not elapsed for the removal of the property, because the possession does not appear to have been withheld from him for the purpose of such a removal. If the plaintiff have no cause to complain, that he was excluded from such an occupation, he can have none for a continuance of that exclusion, unless it should appear, that he was afterward refused entrance and opportunity to remove his property on application for that purpose. Upon the testimony now presented, the plaintiff, if duly authorized to continue to saw after the first entry, would appear to be entitled to recover for all injuries suffered by the removal of the “ cutting off saw” from the mill on two different occasions, and for its value, as he withheld it, when it was demanded of him. He would not seem to be entitled to recover any further damages, unless it should be made to appear, that the defendant had unnecessarily injured his property by removing it from the mill, or had injured it while in his possession, or had refused to permit the removal of it, when requested.

There is another aspect of the case presented by the testimony less favorable to the plaintiff. Ellis testified, that the defendant “ charged him to let no one occupy the mills.” According to this statement he had no authority, as the agent of the defendant, to permit the agent of the plaintiff to commence again to saw after the first entry. And unless that act has been ratified by the defendant, the plaintiff would appear to have been conducting unlawfully, while he continued to use the mill after that time for sawing blocks. And in such case, the defendant would be entitled to make the second entry with the rights and upon the principles already stated in relation to the last entry. The case not having been submitted to the jury upon these principles, the verdict is set aside and a new trial is granted.