Trespass, Quare clausum fregit. Mortgage, Of land. Damages, In tort. If the holder of a second mortgage on certain land knows that a street railway corporation, with the consent of the owner of the equity of redemption, has erected poles on the land and has strung wires on the poles for the transmission of a current of electricity, and, rightly or wrongly supposing that the consent of the owner of the equity of redemption gave the corporation the right to do this, takes no step to prevent it, and afterwards the second mortgagee acquires by foreclosure an absolute title to the land superior to any right derived from the owner of the equity of redemption, he may demand the removal of the poles and wires, and, if this request is refused, he can recover against the corporation in an action in the nature of trespass quare clausum fregit for the continued maintenance of the structures.
In an action in the nature of trespass quare clausum fregit by the owner of a farm, on which he lives with his family, against a street railway corporation, for the wrongful maintenance on the plaintiff's land of poles and guy wires supporting wires transmitting a powerful current of electricity from a power house of the defendant, the character of the defendant's structures and of its acts in sending a dangerous current of electricity over the plaintiff's land are proper matters for consideration by the jury in the assessment of damages.
SHELDON, J.
1. The plaintiff's knowledge that the defendant had entered this land and put up poles and strung wires thereon is not necessarily fatal to her maintenance of the action. She was then merely a second mortgagee of the premises, and rightly or wrongly supposed that the consent of the owner of the equity of redemption gave the defendant the right to do what it did. But this did not authorize the defendant, after the plaintiff's superior title had become absolute, to maintain its structures upon her land without her consent and against her prohibition. For such maintenance and the continued use of the poles and wires for the transmission of an electric current over the land after her request for their removal the plaintiff can maintain an action of trespass quare clausum. She does not recover for the original entry and erection of the poles and wires, but for their wrongful maintenance and use in defiance of her request. This was the point decided in Benjamin v. American Telephone Telegraph Co. 196 Mass. 454. The case is not like Beers v. McGinnis, 191 Mass. 279, or Fenner v. Sheldon, 11 Met. 521, relied on by the defendant.
2. The instructions as to the measure of damages were correct and well guarded. The action was for the wrongful disturbance of the plaintiff's possession; and the character of the defendant's structures and of its acts in sending a dangerous current of electricity over her land was material to be considered. Hunter v. Farren, 127 Mass. 481, 484. French v. Connecticut River Lumber Co. 145 Mass. 261. Pye v. Faxon, 156 Mass. 471, 474. See the discussion as to proximate and remote damages in Leavitt v. Fiberloid Co. 196 Mass. 440, 446, et seq.
3. The other exceptions have not been argued, and we treat them as waived.
Exceptions overruled.