Breaking and entering waived — Case for consequential damages.
An action on the case may be maintained to recover damages for obstructing a way which the plaintiff had across the land of a third person, although certain logs, which caused the obstruction, were, in fact, placed by the defendant just over the line upon the plaintiff's land, at the point where the way entered it.
FROM GRAFTON CIRCUIT COURT.
LADD, J.
I have no doubt the rule settled by the cases cited in the defendant's brief is, that where visible, tangible, corporeal property is injured, and the injury is direct and immediate, proceeding from the wilful and intentional act of the defendant, the action must be trespass. And it is said to make no difference that the property injured may be connected with, or be the means by which, an incorporeal right is enjoyed. Wilson v. Smith, 10 Wend. 325.
I confess that a tolerably careful examination of a large number of cases, from Scott v. Shepherd, 2 Wm. Bl. 892, to Ricker v. Freeman, 50 N.H. 420, has failed to satisfy me that it is always easy to draw the line between those cases where the injury is the direct and immediate result of the wrongful act, and those where it is not.
In the case before us, the plaintiff sets out his grievance in a way that shows he has measured its entire length and depth; and his complaint is, that by the wilful act of the defendant he was almost entirely excluded from the use of the passage-way leading to his dwelling-house, from November 21, 1873, to February 25, 1874; that he was not the owner of the house in which he lived, or of the land over which the passage-way was located; but that the obstruction which caused him the annoyance, inconvenience, and damage, in the use and occupation of the house and way, was, in fact, placed upon his own land at the foot of the dump. He does not complain that the defendant dug up, carried away, depastured, or otherwise directly injured his land. Nor does it appear that he was kept out of the possession of any part of it except that inconsiderable space covered by the three pine logs, whose several dimensions are so carefully given.
I am unable to say that the injury complained of, namely, the obstruction of the plaintiff's way, was such a direct and immediate result of the defendant's act in depositing the logs at the foot of the dump although on the plaintiff's land, that trespass quare clausum fregit was necessarily the only remedy of which the plaintiff could avail himself. I am inclined to the opinion that the case was one of those where the plaintiff might waive the breaking and entering of his close, and sue in case for his consequential damages.
CUSHING, C. J.
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.
Exceptions sustained.
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