Shank v. Cross

By the Court,

Nelson, J.

If this was an action of tres» pas quare clausum fregit, the direction given to it at the circuit would have been proper upon principles of pleading and proof peculiar to that action, but the plaintiffhas counted only for the injury of cutting and carrying away the trees upon his dose, and not to his soil or freehold, and by the declaration seeks to recover only the value of the trees or timber. 2 Wheat Selw. 1017. 2 Chitty, 388. There can be no doubt trespass or trover would lie for the acts set forth in either count of the declaration. It is true that trees standing arc part of the inheritance, and severing them from it might be considered an injury to the freehold, for which trespass quare clausum, fregit would be the appropriate remedy; but the party may waive that ground of recovery, and go for the value of the timber only, thus severed and carried away, as has been done in this case. In the one case, the entering and breaking the close is the gist of the action; in the other, the taking and carrying away the property. The action in this case is, therefore, transitory, and not local; and it appears to be well settled, that a simple pleaof liberumtenementumisnot applicable to atransitory trespass, but is peculiar and proper only in trespass quare clausum *162fregit. Carth. 176. Alstone v. Hutchinson, 2 Willes, 222, n. 6. Bacon's Abr. tit. Trespass, 613. The case as stated in Bacon, was trespass for taking a tree out of a close; the defendant pleaded that the place in which the trespass was charged was his freehold, which was held bad, as such a defence can only be pleaded to an action quare clausum fregit.

The defendant may plead a special liberum ienementum to a transitory trespass, and thereby make it local; but in such case he must set forth specifically the place in which he justifies taking the property; and this may compel the plaintiff to new assign the trespass complained of, or take the hazard of proving a trespass, and meeting the defence at the place set up in the plea, if he takes issue upon it. 1 Saund. 300, a, and cases there cited. 2 Chitty, 550, s. Bac. Abr. tit. Trespass, 622. In this case the action is transitory, and it is not made local by the plea; the place, therefore, where the trespass was committed is wholly immaterial, and the plaintiff is at liberty to prove it where he pleases, and of course the justification must be made where the trespass is proved. Bull. N. P. 92.

The defendant, according to the pleadings in the case, being bound, in his justification, to follow the place mentioned in the declaration, 2 Saund. 5, b, giving to the plea its fullest effect, I can view it in no other light than as setting up a title to the close mentioned in the declaration, and as requiring to support it proof of title to the land where the trespass was committed, and does not come within the reason, or the rule applicable to such a defence in trespass quare clausum fregit, and upon which the plaintiff was nonsuited. That rule has justly been questioned by high authority, Willes, 222; 1 Saund. 299, note c., as constituting a defence even in such an action, and ought not to be extended, much less adopted and applied to a transitory trespass.

The sufficiency of the plea is not now in question; that it would be bad on general demurrer there is no doubt, and whether it presents a material issue or not, it is not now necessary to inquire.

New trial granted,