Zimmerman v. Shreeve

Alvey, J., delivered the opinion of the Court. This was an action of trespass guare clausum, fregit brought by the appellee, the plaintiff below, against the appellant. The plaintiff was only tenant for life of the premises upon which the alleged trespass was committed. The trespass complained of was the breaking the close, and the cutting down, and otherwise destroying, large quantities of growing timber thereon, and the carrying away of quantities of rails, posts, logs, tan bark, &c.

In the course of the trial below there were several bills of exception taken by the defendant; but the only question raised in this Court, as we gather fram the briefs submitted, is one with respect tee the measure of damages, and that is raised upon rthe 'prayers which were granted by the Court, at the instance of the plaintiff. The gist of the action of trespass quare clausum fregit is the injury to the plaintiff's possession, and therefore, to maintain the action, it is essential that he be either in the actual or constructive possession of the locus in quo, at the time of the injury done. Gent vs. Lynch, 23 Md., 58 . The damages will vary, and must be measured, according ³⁶³ to the interest of the plaintiff in the locus in quo.

This rule of damages is founded upon obvious principles of justice, as otherwise the plaintiff might get extravagant recompense for the injury to the land, when his interest therein was limited, or upon the eve. of expiring, and the defendant might he made liable for the same damages to different persons. It is well settled that the same acts of trespass may inflict injuries upon different rights, for which the defendant may he liable in several actions, to different persons, according to the nature and extent of the injury inflicted. In the case of a tenant, whether for life or for years, he may sue and recover for the injury to his possession and right of enjoyment, and the reversioner or remainder-man may sue and recover for any injury sustained to the estate in reversion- or remainder. And where there are several entitled in succession, as tenants for life, in tail, or in fee, they can recover only damages commensurate to the injury done to their respective estates.

Herlakenden’s Case, 4 Co., 63; Briddlesford vs. Onslow, 3 Lev., 209; Jefferson vs. Jefferson, Id., 130; Jesser vs. Gifford, 4 Burr., 2141; Evelyn vs. Raddish, Holt N. P., 543, note; Twynam vs. Knowles, 13 C. B., 222; Lane vs. Thompson, 43 N. H., 320. The damages, therefore, must he assessed with reference to the extent of the several interests affected. In the case of a tenant for life, he is entitled of right, to take reasonable estovers from the land, that is, wood for fuel, fences, agricultural erections, and other necessary improvements and repairs. But, under this right of estovers, the tenant cannot destroy or dispose of the timber, nor do any other permanent injury to the estates in reversion or remainder ; for that would subject him