Davis v. Jewett

In actions on the case for damage to property, it is an established rule in pleading that the plaintiff’s right, or interest in the property, should be stated according to the facts.

Where the plaintiff’s interest in personal property is reversionary, his right must be described accordingly. 1 Chit. Pl. 329.

In 1 Saund. 343, it is said that if the plaintiff declares as *91a reversioner for an injury to his reversionary interest, the declaration must allege it to have been to the damage of his reversion, or must state an injury of such a permanent nature as to be necessarily injurious to his reversion ; and the case of Jackson vs. Pesked, 1 Maule & Sel. 284, is cited as authority to this point. But the ground of this decision is erroneously stated. It is there held that a reversioner must set forth his interest as such, and allege that the damage was an injury to the reversion. It is not sufficient that the injury complained of might be of such a permanent nature as to affect the reversion. The plaintiff in that case declared as a reversioner of a yard and part of a wall, which one W. F. occupied as his tenant; and alleged that the defendant wrongfully placed on the wall quantities of bricks and mortar, and raised it to a greater height than before ; and placed timbers on the wail overhanging the yard, on account of which the plaintiff lost the use of the wall, and the rain flowed from the wall on to the yard, and the yard and wall became thereby injured ; but as the declaration did not allege that his reversion had been prejudiced, the court arrested the judgment.

A declaration by a reversioner usually alleges a possession and occupation in the tenant, and a reversion in himself, and that the defendant, well knowing the premises, and contriving to injure and prejudice the plaintiff in his reversionary estate, did the acts complained of, whereby he has been greatly prejudiced and injured in his reversionary estate.

In all cases of this kind, both the tenant and reversioner have separate actions for their several damage. 1, Saund, 322, note 3; 3 N. H. Rep. 88, Plumer vs. Harper.

The rule requiring the plaintiff to set forth his specific interest in the property affected, in cases of this description, is indispensable. The fact that the plaintiff is a reversioner not only should appear, but the extent of his reversion; whether it is for years, or for life, or in fee. In no other way can the damage be correctly known or assessed.

*92Where the property for a portion of the time is occupied by the owner, and subsequently he has a mere reversionary interest, which is the case in the present suit, separate counts should be inserted, as in Baker vs. Saunderson, 3 Pick. 352.

The instruction to the jury was right, that the plaintiff, under his present declaration, was entitled to recover for injury to his estate while in possession merely, and that he has not claimed and cannot recover in the present suit any damage for that portion of the time while he held a mere reversionary interest.

Judgment on the verdict.