Davis v. Poland , 102 Me. 192 ( 1906 )

Peabody, J.

This is an action of trespass quare clausum, and comes before the Law Court upon motion of the defendant for a new trial, and exceptions to the charge of the presiding Justice directing a verdict for the plaintiff.

The plaintiff was in possession and occupation of a dwelling house claming as owner of two-thirds in common. The defendant, admitted to be the owner of one-third in common, and claiming title to the whole, entered and removed certain of the doors and windows, for the evident purpose of rendering the house untenantable, and thus compelling the plaintiff to vacate. The plaintiff remained in occupation of the premises, and brought this action to recover damages, for injury to the freehold and to her other property, and for her own physical discomfort resulting from the acts of the defendant.

The presiding Justice, finding that the evidence conclusively established the plaintiff’s title to two-thirds in common of the premises, and that the defendant’s acts were of such a character that they amounted to trespass as against his co-tenant, directed a verdict for the plaintiff.

Two questions are raised by both motion and exceptions: Whether trespass quare clausum can be maintained by one tenant in common against another for such injuries to the freehold as are shown in this case, and whether ownership in common existed between the parties to this action. It is a general rule of law that a tenant in common cannot maintain an action of trespass quare clausum against his co-tenant. Porter v. Hooper, 13 Maine, 25; Maddox v. Goddard, 15 Maine, 218; Symonds v. Harris, 51 Maine, 14. But to this general rule there are exceptions, and it is well settled in this Slate that where the acts of a tenant in common amount to a destruction of the common property or effect a practical destruction of the interest of his co-tenant therein, the injured owner has a right of action, and under these circumstances trespass quare clausum is the proper remedy. Symonds v. Harris, supra; Blanchard v. Baker, 8 Maine, 270. Assuming that the plaintiff was an owner in common and in possession of the premises, the removal of the doors and windows, without her consent, in the absence of any circumstance indicating that the act was done in good faith as for the purpose of making repairs, must be held to constitute such a destruction of the common property as would make the defendant a trespasser. But the defendant claimed in justification of his acts, that the plaintiff had lost title to her two-thirds share by the foreclosure of a mortgage given by her to secure the performance of a bond for the support and burial of her father, Edward Crouse. The evidence was not sufficient to show a breach of the conditions of this bond, and therefore the foreclosure of the mortgage was not effective to divest the plaintiff of her title, and the defendant, succeeding by purchase to the rights of the mortgagee, acquired no title thereby. Davis v. Poland, 99 Maine, 345. The presiding Justice was accordingly right in directing a verdict for the plaintiff.

The motion raises the further question whether the damages are excessive. The jury were correctly instructed by the presiding Justice that they should allow the plaintiff two-tliirds the value of the windows and doors removed, and two'-thirds of any other damages done to the house; also whatever injuries were done to her furniture, and something for what pain and suffering she sustained; but that in estimating this element of damages they were to allow only for a reasonable time required for making the repairs to the house. There is little or no evidence of injuries beyond that occasioned to the dwelling house by the removal of doors and windows. These, without doubt, could have been replaced within a few days, and at comparatively small cost. The jury must have considered, as bearing upon the question of damages, the actual suffering of the plaintiff, who seems to have voluntarily assumed the discomfort of living in the house for several weeks in the early spring before attempting to make the necessary repairs. She is not entitled, and the presiding Justice so instructed the jury, to recover for damages which she might have avoided by reasonable diligence. Fitzpatrick v. B. & M. Railroad, 84 Maine, 33; Grindle v. Eastern Express Co., 67 Maine, 317; Miller v. Mariner’s Church, 7 Maine, 51; 8 Am. & Eng. Encyc. Law, 605; 13 Cyc. 71, 78.

The verdict in excess of one hundred dollars may be remitted within thirty days after the certificate of this decision is filed; otherwise the entry will be, Motion sustained.

Exceptions overruled.