Citation Numbers: 10 R.I. 184
Judges: DURFEE, J.
Filed Date: 3/6/1872
Status: Precedential
Modified Date: 1/13/2023
Not being able to agree with my brethren in their conclusion, I think it is of consequence enough to give the reasons for my dissent.
There are two questions involved in the decision of the present question. 1st. What was the English practice as to the plea of soil and freehold, or liberum tenementum; and 2d. Whether it ever has been or ought to be adopted in this state. According to the more ancient English practice it was enough for the plaintiff in trespass quare clausum to allege possession of a close in a parish, or perhaps only in the county, and without name or description. 1 Chitty Plead. 663.
If the plaintiff did not name or describe his close, then, 1st. Defendant might plead liberum tenementum without description, *Page 198
and then plaintiff must new assign; or if plaintiff traversed, it was enough for defendant to prove he had any freehold in parish or county. 1 Chitty Plead. 662, 664, 670; Comyn Pleader,
Defendant might 1st plead liberum tenementum, and name a wrong place. Then as plaintiff could not prove trespass in it, he must new assign. 2d. Liberum tenementum generally. 3d. Thatlocus is an acre, c., c., and is his soil, c. In two last cases if plaintiff be sure defendant has no freehold in the parish, c., he may safely traverse. Roscoe, Real Actions, *675.
2d. If defendant name place, he must describe with sufficient certainty. If both have a close of six acres, defendant cannot show that the alleged trespass was on his, unless he give a name to it, or otherwise distinguish, as otherwise defendant could not new assign. Dyer, 23 b (147). But in Goodright v. Rich, 7 East, 325, 331, Lawrence, J., said practice was, if defendant pleaded liberum tenementum, plaintiff must new assign, notwithstanding case in Dyer, otherwise enough for defendant to prove title to any land answering plaintiff's description.
If defendant name place plaintiff may reassign a different close. This supposes two; if he does not, he is held to admit the defendant is right as to place, and the only question is whether defendant has such a close. 1 Chitty Plead. 664. If defendant name the right place, plaintiff cannot new assign.
This was a peculiar plea. It did not answer the charge. The plea might be good, and yet the plaintiff have a right to his action. 1 Chitty Plead. 541; Story Pl. 625, 676. It was called the general bar, common bar, blank bar, and general issue. Story Pl. 625.
It was peculiar to the action of trespass quare clausum. Story Pl. 625; 6 Robinson's Practice, 780. The sole object seems anciently to compel the plaintiff to new assign. 1 Chitty Plead. 541; 1 Archbold's Practice, 441. It is called an evasive plea. Mansel on Demurrer, Introd. 43; 1 Chitty Plead. 659, 660.
And upon the old authorities (and these are cited for the purpose of showing the use and object of the plea) if the plaintiff did describe the land, defendant could not pleadliberum tenementum. Willes, 218, 225; Rules of 1654, quoted inMartin v. Kesterton, 2 W. Black. 1089, 1091. Greene v.Jones, 1 Saund. 299 c, *Page 199 is positive to this point. So also Archbold's Pl. Ev. (2d London ed. 1837) *272, lays down that if the declaration contains abuttals, defendant could not plead liberum tenementum; and it was of no avail to plead it where defendant merely followed description given by plaintiff. Case of Fold-yard, 1 Chitty Plead. 670. (Harvey v. Bridges, A.D. 1845, 14 M. W. 437, 442, contra; affirmed in W., H. C. 261.) And Littledale, J., in Ellison v. Iles, 3 Per. D. 393, says the plea was improper in such a case; but this remark is omitted in the report of the same case in 11 A. E. 665.
But the more modern practice as to the plea of liberumtenementum seems to be, if plaintiff names his close, the defendant cannot vary from it. 1 Tidd, 690. If defendant has one of same name, if defendant pleads liberum tenementum, he must distinguish it. 1 Chitty Plead. 670; 6 Robinson Pr. 780. If both have closes of same name, and defendant does not distinguish his, plaintiff need not new assign, but may apply evidence to his close and prove trespass there. Chitty, 670; Tidd, 691; Cooke v. Jackson, 9 D. R. 495 (1827); Cocker v. Crompton (1823), 1 B. C. 489.
If plaintiff named close, and defendant pleaded liberumtenementum, plaintiff, 1st, might deny and conclude to country, need not set up his own title. Story, 625; Salk. 354.2d, might derive title from defendant; or 3d, might derive title from one seised before defendant. This might be good even if defendant has a freehold. 1 Chitty Plead. 626; Story Pl. 625; Willes, 218, 225;Rex v. Coke, Cro. Car. 384. If plaintiff did not name close, if defendant pleaded liberum tenementum, and had any land in parish, plaintiff must new assign. And the plea (at least in modern times) admitted the possession and the trespass. 1 Archbold Pr. *442; Caruth v. Allen, 2 McCord, 226. It admits at any rate such a possession as would be good against a wrong-doer. Ryan v. Clarke, 14 A. E.N.S. 71; Thompson v.Hardinge, 1 M., G. S. 947.
In the English practice, the plea was also formerly used for another purpose: e.g. if the defendant pleaded soil and freehold of a third person and justified under him, the plaintiff in replying was not allowed to deny both allegations, but was obliged to confine himself to denying one only, and this often gave the defendant a great advantage. 1 Chitty Pl. 541. *Page 200
The point made in the present case is that the verdict on the plea of liberum tenementum in the former suit is not conclusive except as to the actual place trespassed on, which is to be shown by parol. It is contended that the English and other cases hold that, to sustain the plea of liberum tenementum, it is enough to show title to the place of trespass, and that therefore the verdict cannot be evidence of anything beyond this. Without admitting the inference (and no English case has yet gone so far), let us examine the cases upon the first point.
Hawk v. Bacon, 2 Taunt. 155, Com. Pleas, 1809, trespassquare clausum, naming close. Plea 1. Not guilty. 2. Parcel of waste in which defendant had common and took down the wall which separated it from remainder of common. To this plaintiff replied his close was separate and divided from the common, and owned in severalty and adversely. Rejoinder, wrongfully separated, c. Demurrer. Court: Defendant omitted to traverse allegation. Plaintiff could not have supported, for if plaintiff could not have proved whole inclosed for twenty years, defendant could have recovered. As the defendant intended to raise the question that a part of it had not been inclosed twenty years, he was allowed to amend.
Cocker v. Crompton (A.D. 1823), 1 B. C. 489; S.C. 2 D. R. 719. Trespass on a close called the Fold-yard. Plea, said close soil and freehold of defendant. Replication traversed. Plaintiff proved he had a close of that name and trespass in it. Defendant had one of same name. Defendant contended the evidence should be applied to his close. Verdict for plaintiff. Motion to enter nonsuit. The Court: The plaintiff was not bound to new assign: defendant should have given more description: if plaintiff names his close, he may prove a trespass in any close of his of that name: defendant does not support his plea by showing he has a close of the same name: under the old practice the defendant alone named his close, and then the issue was, whether that close so named was the defendant's.
Richards v. Peake, K.B.A.D. 1824, 2 B. C. 918. Trespass quare clausum, on two closes. Plea 1. Not guilty. 2. Defendant owner of a messuage, c., and in right thereof entitled to common in the close, c., which was part of the common before its wrongful separation, c. Replication, close separated from common, and held adversely thirty years. Rejoinder, not held adversely. *Page 201 (Defendant here did exactly what in Hawk v. Bacon the court had said he should do.) The jury found the trespass committed in a part of the close which had not been inclosed thirty years. Verdict for defendant. The court, Abbott, C.J., said Cocker v.Crompton did not cover this case. In that case each party had a close of the same name. Plaintiff does not entitle himself to verdict by proving part inclosed for thirty years: the words confine the allegation to the place of trespass: jury find trespass committed in part not inclosed thirty years. Verdict properly for defendant. Bayley, J., said: "What question do pleadings raise? It is whether that part where trespass committed had been inclosed thirty years. If jury had found plaintiff had close of two acres, that trespass was committed on one acre, and that acre had not been inclosed thirty years, it would be immaterial whether the other acre had been inclosed thirty years or not. The place of trespass not having been inclosed thirty years, verdict properly for defendant." Holroyd, J.: "Allegation in replication is entire, the plaintiff bound to prove whole inclosed thirty years. If divisible, as I think, then the question is whether place of trespass inclosed thirty years. Here, upon any principles, the verdict was properly for the defendant, because the burden of proof was on the plaintiff, and he did not prove his case."
Bassett v. Mitchell, A.D. 1831, 2 B. Ad. 99. Trespass on a close bounded. Plea, close part of six acres allotted out of waste by commissioners to get gravel for road, and defendant entered for that purpose. Replication, not part of the six acres. Proved close was not all within the six acres, but the place of trespass was. Held, justification made out. Court (Tenterden, L.C.J.): "The opinions of the court in Richards v. Peake (2 B. C. 918) go the whole length of this case. The plaintiff was not obliged, in support of this declaration, to prove trespasses committed on every part of his close. . . . . It is said that the record . . . . will not be decisive evidence in a future action, nor will it as to the whole land in question, but either side may show by evidence what part it was that was affected by the result of this cause." The other doctrine would be inconvenient. Littledale, J., said that, on the other doctrine, proof of trespass in one part would be evidence for the plaintiff for the whole in any future action. *Page 202 Tapley v. Wainwright, K.B.A.D. 1833, 5 B. Ad. 395. Trespass quare clausum, for entering two closes named. Plea. right of common, and the closes wrongfully separated from the common. Replication, not wrongfully, but separated and held adversely twenty years. Rejoinder, traversing. The trespasses were proved over the whole, but about one tenth had not been inclosed twenty years. Verdict for plaintiff. Motion to enter nonsuit. Denman, C.J., said: Rex v. Peake and Bassett v.Mitchell had settled that close in which, means only the particular place where the trespass was committed. Must plaintiff prove every part inclosed for twenty years? We think not. It is divisible. He need not prove more than the part trespassed on inclosed for twenty years. Is he bound to prove that all parts have been trespassed upon, or inclosed for that time? On general issue he might recover pro tanto. The same rule will apply to the replication. In a sale for goods, he need not prove the whole: if an infant, he would recover for so much as he shows to be necessaries. Hawk v. Bacon not well founded. If defendant requires it, the verdict can be entered for plaintiff as to part of the close, and for defendant as to the other part.
Pythian v. Owen, Exch. 1836, 1 M. W. 216. Trespass on three closes described by abuttals. Plea, said closes soil andfreehold of defendant. Replication, title by fine. Proved, trespasses on two. Held, that the plea and replication were divisible; that the plaintiff was entitled to verdict as to two, and defendant as to the other. Confirmed in Excheq. Chamber, 1 Tyrw. 515. The counsel for plaintiff contended that the plea ofliberum tenementum to the whole admitted trespasses in all the closes. Did it not according to all the later authorities?
Smith v. Royston, Exch. 1841, 8 M. W. 381. Trespass for entering close Buck Leap and erecting a building. Plea,liberum tenementum of defendant. Buck Leap was a strip twelve feet wide outside of plaintiff's hedge, and adjoining defendant's land; no fence between. Plaintiff proved acts of ownership for four feet, but the building was outside of this. Court charged that defendant should recover if he proved place where building was to be his. Verdict for defendant. The plaintiff's counsel contended that Tapley v. Wainwright was no authority for this case, that it proceeded on the rule that plaintiff might prove trespass *Page 203 in any part of his close; that Bassett v. Mitchell was not similar; that Cocker v. Crompton shows that if two closes of same name, defendant, to protect himself, must describe his by bounds, and that the same rule should apply to a close of which each owns part.
The court took time to next term. The defendant does not undertake to prove whole close his. On full consideration we think true construction is that plaintiff means that defendant has trespassed on a part of his close named or described, and that the defendant means the same when he replies. This case falls within Richards v. Peake, where the plea was held divisible, and within Tapley v. Bassett. There can be no objection that it will conclude the title for the defendant, for, if offered in evidence hereafter, the plea may show where the trespass was. In this case both plaintiff and defendant claimed more than they proved. But the burden of proof was with defendant.
In considering the authority of these cases, and endeavoring to find out what they decide, after throwing out obiter dicta, it should be observed that in Hawks v. Bacon, Richards v.Peake, Tapley v. Wainwright, and Bassett v. Mitchell, there were no pleas of liberum tenementum, and therefore they can be applied to the present case only by analogy; that inRichards v. Peake the burden of proof was on the plaintiff; in Tapley v. Wainwright the court offered, if the defendant desired to protect himself, to have the verdict entered for a part of the close, the same course which was taken in Pythian v. Owen, and which would save the trouble of amending the pleadings to make them correspond with the proof. And that although there are remarks thrown out in these cases as to what may be done hereafter, yet we are referred to no case where the point now contended for by the city has been decided, viz., that a verdict on the plea of liberum tenementum in an action for trespass, is only conclusive as to the very spot of the trespass.
Such having been the decisions in England, it may be well to inquire how far the practice in this country has corresponded with or followed the English.
Our ancestors, in importing the English common law and its forms, adopted so much of the common law as was suitable to their circumstances, and so much of the forms of action, c. *Page 204 There was here a greater simplicity and fewer forms. In very few of the colonies were all the forms of action retained. Those relating to real estate were generally simplified. In Massachusetts, while they retained the writ of right, c., the common action to try title to real estate was ejectment or a plea of land. This differed from the English action of trespass and ejectment in several respects. In Rhode Island, while we retained the English name of trespass and ejectment, in all other respects the action is very different. All fiction is done away with; while common recoveries are found on our records, ejectment was the only action here expressly to try title. And it was conclusive between the parties. There was here no higher grade of action. It is easy to see that modern English decisions would not apply to these actions in Massachusetts or Rhode Island. In South Carolina trespass was by statute made the sole action for trying title to real estate.
In the English action of ejectment, the general issue was the only plea. A plea to jurisdiction was sometimes specially allowed. Here, besides disclaimer of part or whole, we plead the statute of limitations; and sometimes, although not very consistently, soil and freehold has been pleaded.
So in regard to trespass quare clausum. This of course is mainly a personal action, and the judgment only for damages. But if soil and freehold is pleaded, it is admitted that the verdict settling that issue is conclusive in all future actions, and the only dispute here is as to how much it is conclusive. In this state trespass quare clausum has been often resorted to for settling title, and especially in cases of disputed boundary. If the general issue was pleaded, it might settle only the possession, but that was generally decisive.
And in regard to this action, it is believed the difference in practice of the two countries will be found to be material. In England it was common to declare generally for a trespass for a close in the parish or county, sometimes but not always giving it a name. And this was followed in New York. In Rhode Island, after a considerable search of the records in two counties, I find but one instance of declaring generally, and that was for cutting trees on plaintiff's farm in North Kingstown, and plea not guilty. But the premises were generally described and *Page 205 bounded. And therefore the plea of liberum tenementum was not needed here to compel a better description, but it really meant what it purported to mean. And in the oldest edition of the American Precedents, A.D. 1801, all the forms imply a more or less definite description. In the second edition of it, forms of the indefinite sort were introduced from the English books.
Under our practice, as in ejectment, the defendant might disclaim for part; so in trespass quare clausum he might plead not guilty as to part, and liberum tenementum as to the rest; and this I find was the course taken in a case of disputed boundary by one of the best special pleaders that ever practised among us. And see Lamb v. Beebe,
In ejectment, by the practice of both countries, the plaintiff, although not required to prove title to his whole description, takes a verdict for as much as he proves title to; never for more. If the doctrine contended for by the plaintiff in this case is correct, the person pleading liberum tenementum in trespass quare clausum would take a verdict for more than he proves.
The remarks attributed to Lord Denman in Tapley v.Wainwright can hardly be correctly reported. "Is the plaintiff bound," he asks, "to prove trespasses all over his close?" No one ever contended he was. The plaintiff generally alleges a trespass in his close. So, as to a sale of goods, he says the plaintiff need not prove all he alleges. True, but did anybody ever contend that he could take a verdict for more than he proved? or that if he claimed $1,000, and took a verdict for $1,000, the verdict was not conclusive? But this is what would be done if this new doctrine is introduced; and this is the case which is said to overrule the very sensible decision in Hawk v. Bacon.
In judging of English decisions, considerable allowance is to be made for the mode of giving opinions. Very few opinions are written. Different reporters give the reasons of the judges very differently, some omitting what others give. We have met with many instances of this. The opinions are given orally, and in this way a careless expression may occur, which would not occur in an opinion carefully written, and scrutinized by associate judges.
It was never considered necessary in trespass for a plaintiff to prove possession of the whole tract of which he alleged himself to *Page 206
be in possession. Proof of a possession of part implies possession of the whole, in the absence of proof to the contrary. And this is a safe doctrine, because on the plea of not guilty the verdict is in that case evidence only that the plaintiff was in possession at the time, and not that he had title. 1 Hilliard on Torts, ch. 18, § 11, p. 583; Ring v. Ring, 4 Dev. Bat. 164; Wheeler v. Rowell,
But it is different when the plea is liberum tenementum. The possession then is out of the case, and the title only is in question. And it seems to me that some of the English decisions are explainable on their peculiar theory as to the plea ofliberum tenementum. With them it (at least formerly) amounted to nothing more than the general issue (indeed it was so called, Story's Pleadings, 625). In such a case if possession was disputed, and the plaintiff did not prove all he claimed, or if the defendant proved a part, the plaintiff failed.
In the United States there have been some decisions similar to the English, but they have been mostly in New York, where the whole English practice with all its absurdities was adopted. But in Stevens v. Hughes, 31 Pa. State, 381, trespass, plea soil and freehold, where a former judgment on a case stated which the court held to be of the same effect as title pleaded, the court said: "It is conclusive; we cannot go behind the judgment to inquire on what evidence it was rendered." So in Standish v.Parker, 2 Pick. 20. Held, that in trespass nothing settled but the points put directly in issue; but "if the title is put in issue by a plea of soil and freehold, the verdict will be conclusive in another action for injury done to the same land." And see Burt v. Steinberg, 4 Cow. 559.
The facts in the English cases show that the alleged decisions might be necessary to avoid the defects of a system of pleading which had become a mere system of logical quibbling, — defects so glaring that within a few years their absurdity and the oppression growing out of them have led to a thorough reform in England and Maryland, and to a total abolition of the system in New York and Massachusetts and other states.
A plea should be held to mean what it says, according to the ordinary legal meaning of the words. There is no safety in any other rule. A record or judgment is of no use otherwise. There *Page 207 is looseness enough in our forms of pleading in personal actions, where the papers seldom show the real point in issue, without extending it to actions and pleas involving the title to real estate, which have heretofore been comparatively simple and plain. And a plaintiff or defendant should be required to prove what he alleges. In case of trespass it is generally enough to prove a few acts of possession, and they would draw after them the possession of the whole, if there were no evidence to the contrary. And if the defendant introduces evidence to show the plaintiff is not in possession of all he claims, the plaintiff should either amend or fail. And if the defendant pleads liberumtenementum, this admits possession and the facts alleged, and throws the burden on the defendant to prove his title. And if he fails in proving his allegations, he should amend or be defeated.
Amendment was allowed in similar circumstances in the English case of Hawk v. Bacon, 2 Taunt. 155. Or, a better course would be to have the verdict entered for part according to the proof, as was done in the exchequer case of Pythian v. Owen, and as was offered by the court in the case of Tapley v.Wainwright.
We should thus preserve the advantages of the old system of special pleading, without the quibbles which have rendered it so objectionable and unpopular. If the papers in a case are not to show the matter in controversy, and the verdict and judgment do not show what is decided, better abolish the system. No other system could be worse.
And there is another reason why, if a defendant pleadsliberum tenementum, he should be held to the issue he makes. He is not obliged to resort to this plea to defend himself. He can plead the general issue, and under that can show just title enough to prove himself not a trespasser as to the particular spot. He may show title in himself, that he held under the owner, that plaintiff's interest had expired, c. 1 Chitty Plead. 538; Roscoe on Real Actions, 663, 673, 676; and see the history of the decisions on this point in 6 Robinson's Practice, 648.
If, therefore, he chooses to make an issue upon his title, he should be held to it according to its plain import. And to say that where the trespass was for cutting twenty trees, and the plea was soil and freehold, a verdict on it only settles the title as to *Page 208 the places where the stumps of trees were, seems rather strained. The policy of the law is to settle disputes and prevent further litigation. This doctrine certainly is not in accordance with that policy.