Rich v. Penfield , 1 Wend. 380 ( 1828 )

By tlie Court,

Sutherland, J.

It is not denied that Pen-field was the owner in fee of the mills which are alleged to have been injured by the unlawful conduct of the defendants; but is contended, that from September, 1819, to August, 1826, the period within which the injury was sustained, as alleged in the declaration, the mills were not in his possession, but in the possession of Gelston, his tenant. Gelston, who is the son-in-law of the plaintiff, was examined as a witness, and his testimony contains all the evidence upon this point. He stated that from 1819 to 1825, he occupied the plaintiff’s oil-mill and merchant-mill on shares : that there was no certain agreement as to the terms; but that about twq years before this suit, they had a settlement, and turned the use of the mills into rent. That he aüewed the plaintiff an average rent of a little less than $1000 p6r annum for the flouring mill, and $150 for the oil-mill. That in 1825, he agreed with plaintiff, to occupy the flouring mill at $1000 annual rent and repairs ; and continued so to occupy it at the time of the trial From this evidence, it appears that during five of the six years laid in the declaration, the mills were occupied by Gelston on shares; by which I understand that the net profits were to be divided between him and the plaintiff. Upon a settlement between them at the end of five years, they estimated the plaintiff’s share of the profits, at about $1000 per annum for the flouring mill, and $150 for the oil-mill This was merely a summary mode adopted by the parties of adjusting their accounts, instead of the more minute and tedious process of stating the expense and receipt of the establishment, and did not change or affect the nature of Gelston’s holding. It was a holding or working of the mills for a share of the profits. During this period, I am inclined to think Penfield and Gelston must be considered as having been tenants in common in the mills, as well as the profits. There was no certain and precise agreement between them. From the relation in which they stood to each other, it is probable that it was an arrangement intended for the benefit of Gelston ; that it was understood that he was to manage the establishment, and the profits should be divided as the parties should subsequently agree. I should not infer from this evidence, that the exclusive possession of the mills was in Gelston, The agreement was not for any specified time; it was during the will of the parties. For the injury sustained from the withholding the water from the mills during this period, the action might undoubtedly, and probably ought to have been in the joint names of Penfield and Gelston. They had a joint interest, and any act which tended to lesson or destroy the profits of the mills, was a joint injury to both; and for the purpose of recovering for that injury, they might perhaps be considered as jointly possessed, even if the evidence had been less vague as to Gelston’s holding. But the non-joinder of Gelston could be taken advantage of, only by plea in abatement. Where there are several tenants in common, and all do not join in an action of trespass guare clausum fregit, the defendant cannot take advantage of it at the trial, but must plead it in abatement, (Brotherson v. Hodges, 6 Johns. Rep. 108;) and this is the general rule in actions for torts. (1 Sound. 251, 291, note g. 2 Sound. 191, n. 1, 117 and 147, g.) The only advantage which can be taken of the non-joinder upon the trial, is by way of apportionment of the damages. It is not a ground of non-suit; and although the fact appears upon the face of the record, it is not a ground of demurrer or of motion in arrest of judgment, or of writ of error. (1 Chitty's Plead. 54. 6 T. R. 766. 7 T. R. 279. 1 Bos. & Pull. 75. 2 Bos. & Pull. 123. 5 East, 407, 420.) In relation to the first five years, therefore, the averment in the declaration that the plaintiff was possessed of the mills, &c. appears to be sufficiently supported by the evidence; and it is now well settled, that in an action of this kind, it is not necessary for the plaintiff to allege any thing more in regard to his title, than that he was possessed of the premises, and that by reason of such possession, he was entitled to the use of the water, of which he has been deprived by the defendants. (1 Chitty, 366, 7. 2 Chitty, 337.) But the plaintiff has recovered damages, not only for the obstruction of the water by defendants, from 1820 to 1825, but also from 1825 to 1826; and the testimony of Gelston shows, that during that time, he was the exclusive possessor of the flouring mill at a fixed annual rent of .$¡1000. It seems to me impossible, that the plaintiff can recover for that year under this declaration. He was not in fact or in judgment of law the possessor of the mills during that period. He could not have maintained trespass for any unlawful entry into them; he had neither the possession nor a right to the possession; If the injury complained of was of such a nature as to entitle the plaintiff to damages as tenant of the freehold, he should have described his interest accordingly. Where a reversioner sues for an injury to houses, land, &c. in possession of his tenant, he must set forth the character in which he sues, and allege according to the fact, that the lands were held by a third person as tenant to the plaintiff. (1 Chitty, 366. 2 Chitty, 336.) It seems to be conceded by the counsel for the plaintiff, that this objection would have been fatal, if it had been properly taken at the trial. But he contends that the objection is merely one of variance between the declaration and the proof and that the proof was not objected tú on that ground. The objection is that the evidence does not support the plaintiff’s title as laid in the declaration j and this ground was distinctly taken by the counsel for the defendants, and urged upon the court. The case states, that the defendants’ counsel urged, among other things, that the plaintiff could not recover at least for injuries sustained by the oil-mill and merchant-mill, on the ground that the interest was either in the plaintiff with Gelston, or in Gelston alone for the whole period, or because the injury was a part of the time to the tenant in common, and a part exclusively to the tenant of the term, and not the tenant of the freehold. Now the only interest alleged in the declaration, xvas the possession of the plaintiff and the only evidence of interest upon the trial, xvas that xvhich xvent to the fact of possession; xvhen the defendants objected, therefore, that the plaintiff could not recover, because the injury proved was for a part of the period exclusively to Gelston, the tenant of the term, it was substantially objecting that the plaintiff’s proof varied from his declaration, but it was not necessary to put the objection in that specific form. This is not a bill of exceptions, but a case; and if it appears that the plaintiffought not to have recovered on grounds which, if they had been specifically taken at the trial could not have been obviated, the verdict should be set aside. Upon this ground, therefore, I am of opinion, that a new trial should be granted. It becomes unnecessary, therefore, to express any definite opinion upon the merits of the case; and as it is apparent that any opinion xvhich the court might express, would not terminate the controversy and supersede the necessity of a new trial, it is deemed inexpedient to discuss at large the principles of law which the case presents, or to analize the evidence in order to ascertain whether it supports the verdict.

I shall simply remark, that the charge of the judge appears to me to be substantially in accordance with the principles established by this court in the analogous cases of Palmer v. Mulligan, (3 Caines, 307,) of Platt v. Johnson and Root, (15 Johns. R. 213,) and Merritt v. Brinckerhoff, (17 Johns. R. 306,) and that it is not a case in which the court would inierfere with the verdict, as against the weight of evidence. It is not intendéd, however, to preclude the discussion either of the questions of law or of fact, if the case should again be presented to the court in substantially the same form.

New trial granted.