MURPHY v. BOLGER BROTHERS.

SUPREME COURT, Vermont. 1888.

60 Vermont 723.

EJECTMENT in common form. Plea, general issue. Trial by court, March Term, 1886, Ross, J., presiding. Judgment for the plaintiff to recover of the defendants the seisin and peaceable possession of the premises and one cent damages and costs.

The plaintiff and the defendants were adjoining landowners, and there was a dispute between them as to the exact location of their division line. The defendants' land was described by courses and distances, and its east line was controlled by the east line of a store building standing upon it. The plaintiff's land was simply bounded by the defendants'. The plaintiff did not claim that the defendants had invaded his property upon the land itself, but did claim that they, in changing the location and making repairs of their buildings, had projected the side of a roof on a barn and on a shed, some sixteen feet from the ground, over the division line and over the land of the plaintiff. Both parties had caused accurate surveys to be made, and they only differed in that one surveyor, who fixed the line for the defendants, located his line from the side of the old store building, while the surveyor for the plaintiff located his by the foundation walls of the same building. The court found that the survey made for the defendants was of the correct line, but that the projection of the side of said roof, as the same was built by the defendants, did extend over said division line and slightly over the land of the plaintiff.

After this suit was commenced, and after the surveys had been made, but before the trial, the defendants had cut away the entire projection of the roof of their buildings, so that at the time of trial no part of said buildings came to the line, but said buildings were entirely upon lands of the defendants.1

TYLER, J. The question in this case is whether the plaintiff can maintain the action of ejectment, or should have resorted to an action on the case as for a nuisance.

This action, which was originally employed in England to enable the lessee of lands, who had been ejected therefrom during his term, to recover damages therefor, was subsequently enlarged to enable him also to recover possession of the land. In later years it has been used both in England and in this country to try questions involving the title to real estate. Under our statute, sec. 1247, R. L., a person having claim to the seisin or possession of lands, tenements or hereditaments, is entitled to an action by writ of ejectment, and if he re

1 Suppose that the projection had been cut away by the defendants before this action was brought. Would ejectment lie? Trespass? See Shipman, Common Law Pleading (3d ed. 1923) 176.

cover judgment it shall be for his damages and the seisin and possession of his lands.

Chitty, vol. 1, page 188, defines the action as sustainable for the recovery of the possession of property upon which an entry might in point of fact be made, and of which the sheriff could deliver actual possession, and as not in general sustainable for the recovery of property which is not tangible.

Tyler on Ejectment says, page 37, that by the common law and the general rule, ejectment will not lie for anything whereon an entry cannot be made, or of which the sheriff cannot deliver possession; that it is only maintainable for corporeal hereditaments; that anything attached to the soil, of which the sheriff can deliver possession, may be recovered in this action.

The action of ejectment will lie whenever a right of entry exists, and the interest is of such a character that it can be held and enjoyed, and possession thereof delivered in execution of a judgment for its recovery. Rowan v. Kelsey, 18 Barb. 484; Jackson v. Buel, 9 Johns. 298.

The precise question in the case at bar is whether the projection of the side of defendants' roof over plaintiff's land and sixteen feet above it was an ouster of plaintiff's possession of his land, or a mere intrusion upon, and interference with, a right incident to his enjoyment of the land.

Blackstone, book 2, page 18, says: "Land hath also, in its legal signification, an indefinite extent upwards as well as downwards"; . . . "the word 'land' includes not only the face of the earth, but everything under it or over it."

Defendants' counsel insists that this action cannot be maintained because there was no intrusion upon the plaintiff's soil, but upon the air or space above it, while plaintiff's counsel claims the rule to be that the action will lie provided the intrusion extends over the line of plaintiff's premises, no matter how slight it is nor how far above the soil,

If the defendants had constructed their barn so that the foundation wall and the building itself had been wholly or in part over the line upon plaintiff's land, there could have been no question as to the plaintiff's right to maintain ejectment. But suppose they had built their foundation wall strictly upon their own land, but close to the line, and had projected the entire side of the building itself a few inches over the line and above the plaintiff's land, could the plaintiff maintain ejectment for the intrusion? If not, it would be because the intrusion was not upon the land itself but the space above it. If he could not maintain ejectment, he would be obliged to submit to the invasion, and only have his damages therefor. But the law says the land is his even to the sky, and therefore he has a right

1 Indicated omission in original report.

to it, and should not be compelled to part with any portion of it upon the mere payment of damages by the trespasser. A case can readily be conceived where the projection of the side of a building, or even of bay windows, by one party over land of another would be of so great inconvenience and injury to the latter that a judgment for damages would afford no adequate compensation.

But to carry the illustration one step further. One owner of a party or division wall places upon the top thereof a cornice about two and a half inches wide, which projects over the lot of the adjoining owner. Can the latter maintain ejectment? It was held in Vrooman v. Jackson, 6 Hun, 326, that he could not. It was also held in Aiken v. Benedict, 39 Barb. 400, that where one erects a building upon the line of his premises so that the eaves or gutters project over the land of his neighbor, ejectment would not lie; that an action for a nuisance was the proper remedy, the court in that case dissenting from the doctrine of Sherry v. Frecking, 4 Duer, 452. A similar case to the one last cited is that of Stedman v. Smith, 92 Eng. Com. Law, 1. There the plaintiff and defendant occupied adjacent plots of ground, divided by a wall of which they were the' owners in common. There was a shed in defendant's ground contiguous to the wall, the roof of which rested on the top of the wall across its whole width. Defendant took the coping stones off the top of the wall, heightened the wall, replaced the coping stones on the top, and built a wash-house contiguous to the wall where the shed had stood, the roof of the wash-house occupying the whole width of the top of the wall; and he let a stone into the wall with an inscription on it stating that the wall and the land on which it stood belonged to him. It was held that on these facts a jury might find an actual ouster by defendant of plaintiff from the possession of the wall, which would constitute a trespass upon which plaintiff might maintain an action against defendant. This case is in point as showing a disseisin of the plaintiff's possession rather than a mere infringement of a right.

In McCourt v. Eckstein, 22 Wis. 153, it was held that where some of the stones of defendant's foundation wall projected eight inches over plaintiff's land, the plaintiff might treat this as a disseisin rather than a trespass, and might maintain ejectment.

It clearly is not essential that the intruding object should actually rest upon the plaintiff's soil to entitle him to the action of ejectment, for this action will lie for an upper room in a dwelling-house or other building.

As the law gives the owner of the land all above it within its boundaries, we can find no reason, resting in principle, why, for the projection by one party of a portion of his building over the land of another, as in this case, he may not be liable in ejectment. The plaintiff was disseised of his land, and the defendant was in the wrongful possession thereof by his projecting roof. Chamberlin v.

Donahue, 41 Vt. 306. There is no more difficulty in describing in a declaration a projection above the soil than one upon it, nor can there be any difficulty in the sheriff delivering possession to the plaintiff. No question was raised in the court below as to the sufficiency of the declaration.

The judgment of that court is affirmed.1

In SMITH V. WIGGIN, 48 N. H. 105 (1868), NESMITH, J., said (p. 109): "The general rule of practice appears to be, that the action of ejectment will not lie for an easement, which is not a title to or an interest in law. This action lies only for something tangible of which possession may be delivered by the sheriff, and not for an incorporeal hereditament lying merely in grant.2 . .

An action of ejectment will not lie against one claiming an easement in a parcel of land, to try his right to enjoy the same. Washburn on Easements, sec. 2. The author specially refers to Child v. Chapell, 6 Selden, 246. We find the great weight of authorities to be against the maintenance of this form of action, as a remedy for plaintiffs. The more approved remedy for the disturbance or interruption of plaintiff's right of way is the action of trespass on the case."

In JUDD V. LEONARD, 1 Chip. 204 (Vt. 1814), the court said: "If the owner of the soil encroach, no ejectment will lie against him; there are other remedies for the public. If the plaintiff can, in this case, maintain his action of ejectment, although entitled to an easement only, a right of way over the land demanded, yet he will recover the soil itself. For such with us is the consequence of a recovery in this action, in which the land itself, not merely the easement, is demanded; and a recovery in this case, will give the plaintiff, not the easement only, which he has a right to claim, but the fee of the land." 3

SECTION 7.

ABOLITION OF THE FORMS OF ACTION

FIRST REPORT OF HER MAJESTY'S COMMISSIONERS FOR INQUIRING INTO THE PROCESS, PRACTICE, AND SYSTEM OF PLEADING IN THE SUPERIOR COURTS OF COMMON LAW (1851) 32-34.

WE pass on to the important question of whether forms of action. should still be retained. It may be difficult to define what is meant

1 See, accord, Butler v. Frontier Tel. Co., 186 N. Y. 486 (1906) (telephone wire). See, generally, E. H. Warren, Cases on Property (2d ed. 1938) 475–519. 2 Citations omitted.

3 Suppose that the defendant obstructs the plaintiff's right of way over the land of a third person, as in Chism v. Smith, 138 App. Div. 715 (N. Y. 1910), rev'd on another ground, s.c., 210 N. Y. 198 (1914). What is the appropriate form or forms of action at common law?

by a form of action. Practically, however, it may be said to be the peculiar technical mode of framing the writ and pleadings appropriate to the particular injury which the action is intended to redress. By the established practice of pleading, peculiar forms of expression characteristic of each action have been appropriated thereto, many of which are of a purely formal nature, and are wholly independent of the merits of the cause of action. Thus, as an instance, in those cases in which . . . trespass is the appropriate remedy, the plaintiff's declaration must state that the act complained of was done with force and arms, and against the peace, although the trespass may have been unaccompanied by violence; these allegations being unnecessary in case. Yet the distinction between the injuries to which these forms of action are respectively appropriate is . . . often of a very shadowy nature, and the ground of complaint must in each case be set forth with sufficient distinctness and particularity, independently of these technical forms. So in assumpsit and debt, which forms of action are in many cases equally available, particular forms of expression are necessary in each action, any departure or deviation from which would make the declaration bad. So in an action of assumpsit founded upon a bill of exchange or promissory note against an indorser, not only the bill and note and the indorsement, but also a promise to pay, must be expressly stated. No such promise need, however, be proved, though the omission to state it would be ground of objection.

The necessity of adhering to these forms sometimes subjects declarations to objections on special demurrer, and has led to plaintiffs being defeated after establishing a good cause of action, on the ground that the form of action has been mistaken. It remains to be considered whether any countervailing advantage results from maintaining these forms. We think not. It appears to us that if the facts which constitute the cause of action be sufficiently set forth in the declaration, all the legitimate purposes of pleading are thereby accomplished, and that to incumber the pleading with formal requirements, which afford no additional information, but which open a door to technical and captious objections, is not only useless but mischievous. We feel ourselves, however, bound to state, that much difference of opinion exists in the legal profession on this head.

The principal objection that has been urged against any alteration in this respect is, that by abolishing forms of action causes of action would become less clearly defined. It is said that in order to ascertain whether a party has a good cause of action the test may be applied of what form of action would be applicable to the case, and that if the facts can be moulded into any form of action, the conclusion may be drawn that there is a good cause of action. This, however, appears to us to be an unscientific method of arriving at the conclusion, which is thus attained by determining not what is or