Cushing, C. J.
¶1
I concur fully in the results reached by my brother Ladd, and only desire to add, that, if the case required it, I should be inclined to hold that the difference between trespass and case has now become matter of form, and to permit the form of action to be changed by amendment.
Smith, J., concurred.
¶2
Exceptions sustained.
Download
Copy
Embed on your site
iframe Markdown Preview card Button Hover to preview · click to copy the code
Case posture Posture CASE. The writ is dated February 25, 1874. The declaration is as follows: In a plea of the case, for that, on and long before November 21, 1873, and since then to the present time, the plaintiff was seized in his demesne as of fee of a tract of land in said Littleton, lying adjacent to and at the foot of the dump and passageway, up the hill to the dwelling-house and barn then and now occupied by the plaintiff, said dump and passage-way being the ordinary, usual, and only convenient way of access to and departure from said dwelling-house and barn, with their appendages, across said tract of land to and from the public roads and places of business in general, either for people on foot, on horseback, with beasts, carriages, or vehicles of any description; — yet the said defendant, knowing all the circumstances aforesaid, and contriving and intending unjustly to injure the plaintiff, and annoy and disturb him, his family, and his friends, notwithstanding the plaintiff was at the same time, and still is, having severe and apparently fatal sickness in his family, all well known to the defendant at the same time, yet the said defendant, as aforesaid, on said November 21, 1873, drew, with his team of four large oxen and two teamsters, and placed across said passage-way, at the foot of said dump, on said tract of land, a large, defective, worthless pine log, of the length of 34 ft. and 10 in., and of the diameter of 19 1/2 in. at the top, and which lies northward, and extends 5 ft. 9 in. beyond the dump fence, on the north side of said dump, which the said defendant covered several feet deep
with wood cut for fuel, entirely closing the passage around the end of said log; and the diameter at the butt end of said log is 24 1/2 in., and extends southward beyond the dump fence, on the south side of said dump, 8 ft. 4 in., leaving a space of only 15 in. between said log and the end of the dump fence, and compelling people passing through said space to go 8 ft. and 4 in. to get around the butt end of said log. And, on the same November 21, 1873, said defendant, with said team and teamsters, drew and placed by the side of said log, on said tract of land, a second log, of the length of 15 feet, and lying at the butt or southerly end thereof, 4 feet from said first named log, and, at the top or northerly end thereof, 8 inches from said first named log, being the diameter of 25 in. at the top end, and of the diameter of 26 in. at the butt end. And, on the same November 21, 1873, said defendant, with his team and teamsters aforesaid, drew and placed by the side of said first and second named logs, on said tract of land, a third log, which he removed after a few weeks; but the said defendant kept the said first and second named logs in the position in which he placed them as aforesaid, from the said November 21, 1873, to February 25, 1874, and thus almost entirely excluded the plaintiff from the use of said passageway, as before described, all that space of time.
The action was referred to a referee under the statute, who reported that he heard the parties; that the plaintiff substantially proved the allegations contained in the declaration, and rested his case; that the defendant then moved for a nonsuit, upon the ground that the action was case when it should have been trespass, the obstruction being upon land of the plaintiff, which motion he denied, and, at the request of the defendant, reported the facts and his ruling. The referee assessed damages in favor of the plaintiff in the sum of fifty dollars. Upon the coming in of the report at this term, the plaintiff moved for a judgment on the report in his favor, which the court denied; and the plaintiff excepted. The defendant renewed his motion for a nonsuit, which the court, STANLEY, J., granted; and the plaintiff excepted.
Ordered, that the questions of law arising on the foregoing case be transferred to the superior court for determination. Source: CourtListener
