Manson v. Dempsey
Manson v. Dempsey
Opinion of the Court
The opinion of the Court was delivered by
This was an action for damages for trespass. The plaintiffs and the defendant, Mrs. Lydia A. Dempsey, own adjoining lots, fronting on Main street, in the city of Columbia. The dividing line runs approximately east and west. The defendant’s lot lies north of the plaintiffs’. The trespasses alleged consisted in removing part of a fence between the lots and building a brick wall, *195 which enclosed a part of the plaintiffs’ lot, and in digging and plowing up the soil thereof. The real controversy was as to the location of the line. Mrs. Dempsey admitted that the brick wall, which extends from the street to a point opposite the back end of her house, was built by her orders, and contended that it was entirely on her side of the line. S'he testified that it was built within1 the line of an old fence which had enclosed her lot since 1879; and although she did not plead adverse possession, she was given the benefit of that plea by the Court in the charge; she also testified that her house was built about twenty inches from the line in dispute. There was testimony that the foundation of her house was at right angles to Main street; and that the brick wall complained of was from eighteen to twenty-seven inches from it. There was also testimony that the brick wall was not only not straight in itself, but also that its general course was not on a projection of the line of the old fence from the west end of it, which, according to some of the witnesses, would run under the foundation wall of defendant’s house and intersect Main street several feet north of the point where the brick wall intersects it.
The complaint alleges several trespasses at different times. The defendant, C. M. Dempsey, admitted that he had gone upon plaintiffs’ lot and cut down the weeds and plowed it up; also, that he had built a trellis on it for vines to run on opposite a window in defendant’s house. Mrs. Dempsey admitted that she had planted tomatoes under that trellis. These trespasses were admitted to have been upon parts of plaintiffs’ lot not claimed by defendant.
Appellant contends that, under section 283 of the Code of Civil Procedure, it was error to submit issues to the jury. So much of that section as is-pertinent is as follows: “In 'every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the Court may direct the juiy to find a special verdict in writing, upon any or all of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a. written finding thereon.” Appellant erroneously assumes that this, is an action for the. recovery of specific real property; It *197 is an action for damages for tresspass on real estate. But if it were an action for the recovery of specific real property, it does not follow that the Judge could not submit issues to the jury and direct a written finding thereon, for the section above quoted expressly provides that “in all cases, (he) may instruct them, if they render a general verdict, to find upon particular questions of fact.” Now, in this case, they did render a general verdict, to wit: the verdict for $500.00 damages, which, without the issues, would have been the only verdict found1. But that would have left the defendant in a much worse plight than we find her; for, under the pleadings and evidence, (but for the admission of plaintiffs’ attorney in the Court below that plaintiffs did not claim any land north of the foundation wall of her house) a general verdict for damages might have been construed as finding title in plaintiffs up to a line which runs under the foundation wall of her house, and with that admission, such • a verdict might be construed- as finding title in plaintiffs up to the wall of her house. So that, instead of being prejudicial, we think the submission of the issues was decidedly beneficial to the defendant.
Appellant contends further that, as both parties claim the line to be straight, and both admit that the southern wall' of the house is not parallel to the line claimed by either party, it was error to submit the first issue. There is at least one mistaken assumption in this contention. The plaintiffs allege in the complaint that their lot is a rectangular parallelogram, and there was testimony tending to prove that allegation, and also that the line of the southern wall of defendant’s house was at right angles to Main street.
Affirmed.
Reference
- Full Case Name
- Manson v. Dempsey.
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. Real Property — Trespass—Nonsuit—Verdict.—There being evidence here from which it may be inferred that defendant’s husband acted as her agent in committing the trespasses alleged on plaintiff’s land, it was proper to refuse to nonsuit and direction of verdict for defendant. 2. Ibid. — Issues may be sent to the jury in an action for damages to land. May they be in an action for recovery of specific real property? 3. Ibid. — A verdict fixing the line between two lots as so far from the wall of a house on one side means the foundation wall, but here the meaning is explained by the evidence to be the foundation wall. 4>. Ibid. — A verdict can be only understood as locating a land line at the point in dispute; that such location would make the whole line crooked, which both parties claimed to be straight, is not material. 5. Appeal — Ibid.-—The trial Court on motion for new trial on ground that verdict was excessive having reduced it, this Court will not consider if it is still excessive, there 'being testimony to support it.