Bryant v. Sparrow , 62 Me. 546 ( 1873 )

Walton, J.

We think the construction put upon the lease from the defendant to the plaintiff, by the judge of the superior court, was correct. It is true that the defendant reserved the right to sell the second lot mentioned in the lease, or to use it to build upon; in which case the lease, so- far as that parcel of land was concerned, was to become inoperative and void. But subject only to this right of the defendant to sell or use the land in question to build upon, the plaintiff was to have the exclusive right to use, occupy and improve it for a garden or nursery; and having in fact taken possession of it for these purposes, and being in the actual occupation of it when the defendant entered, his entry being for a purpose other than that mentioned in the lease, and without the plaintiff’s consent, we think it was a trespass for which trespass guare clausum fregit could be maintained. The right of a tenant to maintain trespass guare clausum fregit against his landlord for an unlawful entry upon him before the tenancy is terminated, is well settled. Dickinson v. Goodspeed, 8 Cush., 119; Brock v. Berry, 31 Maine, 293.

The damages seem to have been very liberally assessed; but on the whole we think the verdict must be allowed to stand.

Motion and exceptions overruled.

Judgment on the verdict.

Appleton, C. J., Dickerson, Daneorth, and Yirgin, JJ., concurred.