French v. Holt , 57 Vt. 187 ( 1884 )

The opinion of the court was delivered by

Rowell, J.

A majority of the court think this judgment should be affirmed.

The second count is in case both in form and substance. The thing complained of is, that defendant “ wilfully left said gate open.” It is not alleged that he opened it, and no such inference can properly be drawn from the allegation that he left it open. It may as well be inferred that in travelling the way he found and left it open, or lawfully opened it to pass through and omitted to 'shut it. In any view, he is charged with a mere non-feasance, and a mere non-feasance is not a trespass, and will not make one a trespasser ab initio even though it consists in the abuse of an authority given by law: Stoughton v. Mott, 25 Vt. 668; Redfield, Ch. J., in Stone v. Knapp, 29 Vt. 501. Trespass lies only for immediate injuries committed with force, actual or implied; and an injury is considered immediate when the act complained of, and not merely its consequences, occasions it. 1 Chit. Pl. 126. But here the injury complained of was not the immediate but the mediate result of the omission complained of.

The count goes for damage to crops growing on plaintiff’s land, and on the general issue pleaded to it, plaintiff would be put to the proof of title to land in order to make a case; and although proof of a possessory title might be sufficient, even that would oust the justice of jurisdiction were this the only count in the declaration; for it is not left to be determined by the pleadings subsequent to the declaration whether the justice has jurisdiction, but whenever the declaration is of such a character that, under the general issue or any other plea that puts the plaintiff to the necessity of proving the declaration, he is bound either to prove or disprove a title to land, the justice has no jurisdiction. Poland, Ch. J., in Jakeway v. Barrett, 38 Vt. 316; French v. Holt, 51 Vt. 544. This last case was between these same parties for the statutory penalty for leaving this gate open, thereby exposing plaintiffs lands and crops to damage, and it was held that the justice had no jurisdiction, as the title to land was concerned. The case before us is not distinguishable from that in this respect.

But it is said that although this count may be in case and the title to land concerned, yet it may be joined with the first count, as both are for the same cause of action, and s. 912, R. L., provides for the joinder of trespass and casé when for the same cause of action. Conceding that both counts are for the same cause of action, which is not decided, then they cannot be joined, for s. 821 expressly excepts from the jurisdiction of justices all actions in which the title to land is concerned except trespass on the freehold in which the sum demanded does not exceed twenty dollars; and to warrant a joinder under s. 912, the court must otherwise have jurisdiction of both forms of action in the concrete case. To hold differently would be to partly repeal by implication said exception in s. 821, a kind of repeal that is not favored in law, and is never held unless the subsequent statute is so inconsistent with the former that both cannot stand together. But here both may stand together, and the view here taken leaves both operative. Hence, the justice had no jurisdiction, and he could not amend himself into jurisdiction by striking -out the count in case. Chadwick v. Batchelder, 46 Vt. 724. Nor by pleading to issue in the justice court after his motion to dismiss was overruled did the defendant waive his right to object in the County Court for want of jurisdiction. That the court has no jurisdiction of the action may be objected at any time; it is not dilatory matter, which is waived if not objected at the first opportunity: cases passim.

Judgment affirmed.