Miller v. Inhabitants of Greenwich

The opinion of the court was delivered by

A verdict was directed at the Circuit in favor of the defendants in an action of tort brought to recover damages for injury to real property, and upon the consequent judgment this writ of error was brought. The complaint in the declaration was of the cutting down of a public street in front of the plaintiff’s house and the destruction of a sewer or drain laid across it for the use of the plaintiff. In form the allegation was trespass quare clausum, fregit. To the plea of not guilty two special pleas were added — one that the defendant Rambo, who was a member of the township committee of the township of Greenwich, did the injury complained of, in the amending and repairing of the street by direction of the township committee, and the other that he did the injury by virtue of an ordinance of the township. To these pleas the replication de injuria was interposed and the issues came on to be tried. It appeared that the plaintiff’s title ran only to the side of the street upon which his land abutted, and that the sewer existed by parol license from one Paul, the owner of the fee of the land in the *772street and on the opposite side. The direction of verdict was upon the idea that the plaintiff had no property rights in the premises. It is not necessary to consider his rights in the street, but he surely had a right to his sewer. The learned trial judge seems to have based his contrary decision upon the case of Wiseman v. Lucksinger, 84 N. Y. 31, which holds that an easement to drain through the lands of an adjoining owner can only be created by deed. Granting this, still an unrevoked license has value, and as against everyone but the licensor or those claiming under him an action ought to lie for injury to the licensee. For mere disturbance of an easement the remedy at common law was an action on the case (1 Chit. Pl. 142), but trespass was always proper where there was an exclusive right of possession, as there must have been of the sewer in question. Id. 174. Under our rules of pleading, trespass and case are now both styled actions of tort and the form of declaring is not very important. It has long since been adjudged in the Supreme Court that an injury by a stranger to an exclusive possession in lands of a mere licensee is actionable. A pertinent case is Paul v. Hazleton, 8 Vroom 106. It was there held that, although the exclusive right given by statute to a riparian owner to plant oysters in the bed of a navigable stream adjacent to his land is a mere license subject to revocation, yet that an action of trespass quare clausum fregit will lie for an invasion of that right. We entirely approve of the doctrine underlying this case and think it applicable to that now before us. It was proved that the defendant Rambo cut down the street and destroyed the sewer. He proved no authority from the township. Against him, therefore, a right of action was established and the judgment in his favor must be reversed and venire de novo awarded. As there was not a scintilla of evidence connecting the township with the transaction, the judgment in its favor must stand. If, on the new trial, Rambo can justify under the township, questions will arise not open for present discussion in this cause.

*773As to the inhabitants of the township of Greenwich—

For affirmance — The Chancellor, Chief Justice, Depue, Van Syckel, Dixon, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh. 14.

For reversal — None.

As to the defendant John Rambo—

For affirmance — None.

For reversal — The Chancellor, Chief Justice, Depue, Van Syckel, Dixon, Lippincott, Gummere, Ludlow, Collins, Bogert, Nixon, Hendrickson, Adams, Vredenburgh. 14. ...