Knight v. Dunbar , 83 Me. 359 ( 1891 )

Peters, C. J.

The parties in this case were respectively owners of adjoining lots of land, with titles unquestioned. The plaintiff had erected a close board-fence on a part of the line between them. The defendant undertook to raise up the level of the land on his side of the fence by carting in a quantity of earth upon it. lie did the job so unskilfully and carelessly that, by the action of the elements, the new earth pressed the fence over upon the plaintiff’s land, carrying’ a portion of the newly deposited material with it. The plaintiff sues in an action of case for the injury.

The defendant contends that the action should have been trespass queire clausum, and that, however brought, an action for injury to real estate, cannot have day in the Kennebec Superior Court, where the suit was instituted.

That court has jurisdiction in causes generally, "except complaints for flowage, real actions, and actions quure clausum.” The present action is not one of quare clausum either in form or substance. It is properly brought in case. The gist of the charge against the defendant is for his improper or neglectful use of his own land, the consequence of which was an injury to the land of the plaintiff. The action is not within the causes of action above excepted. We do not think the Superior Court is inhibited from entertaining actions merely because some question touching real estate may be involved in them. The title to real estate may be brought in question in collateral and incidental ways in any personal action. The title to personal property may depend on the title to real estate. An assault may be justified as having been committed in defense of one’s real estate. This view is well sustained by the reasoning and result, upon somewhat similar facts, in the case of Hatch v. Allen, 27 Maine, 85.

Exceptions overruled.

Walton, Virgin, Libbey, Emery and Foster, JJ., concurred.