Barclay v. Grove , 9 Sadler 153 ( 1888 )

Opinion by

Mr. Justice Paxson:

When this case was here before (see 106 Pa. 155) it was said by our brother Gordon, in delivering the opinion of the court: “Grove might, in relief of his property, have removed the machinery; but he elected, as he had a right to do, to let it remain where it was, and thus the original condition of affairs continued.” And again: “The jury and they might have found for the plaintiffs on either of the three following grounds: for the use and occupation of the premises; on an implied contract for storage; or for an obstruction of the plaintiff’s use of the property by an unwarrantable persistence by the defendant in the possession of it without right.”

The plaintiff went to trial in the court below for the last named of these causes of action, and the case now comes up with a verdict in his favor. The assignments of error are numerous, but they are all discussed under the three classifications of the defense as they appear in defendant’s (plaintiff in error’s) paper book. The said classifications are as follows:

1. “The defendant below had a right to maintain his property in the premises in question.”

2. “If the plaintiffs have any cause of action it is only to be enforced by intervening in the partnership suit.”

3. “In this form of action, the cause of action being the refusal to perform a duty, the breach was complete at once. It is not a continuing cause of action. The suit is barred by the statute of limitations. Even apart from the bar of the statute the measure of damages is entirely different in this suit from what would be proper in a suit for storage, or for use and occupation.”

The first two propositions are covered by what was said upon the former writ of error and will not be further discussed.

We do not regard the third ground of defense as well taken. The cause of action was not, as is assumed in the position and argument, a mere refusal to perform a duty. On the contrary, it was substantially for an obstruction of the plaintiffs’ use of their property by means of which they were unable to occupy or lease it, and lost the rents and profits thereof. Under these circumstances we are of opinion that this suit is not barred by the statute of limitations.

Nor are we able to see any error in the measure of damages as laid down by the court. Upon this point the learned judge said: “The plaintiffs cannot recover the loss of the capital value of the property; they cannot recover anything for the dilapidation or destruction of it, for they might have kept it up; but they have a right to recover what they lost annually by reason of ¡being prevented or obstructed by the defendant in the use of it, or from obtaining any income for it, if you believe that he did obstruct or interfere with them in the use and enjoyment of the property.”

We see nothing in this language to criticise, nor in that portion of the charge bearing upon the same point, embraced in the thirty-sixth assignment of error.

None of the assignments of error is sustained.

Judgment affirmed.