The opinion of the court was delivered by
L0W5.IE, J.We think there was no error in allowing the plaintiff to amend his declaration so as to charge that the act was an injury to his reversion, instead of his possession. The act complained of was the same. True enough, the liberality with which amendments are allowed in our practice does encourage slovenly and inaccurate habits among pleaders; but we think that this evil is more than compensated by the fact, that our practice discourages the hashing up of cases so as to give more prominence to the artificial forms of action than to the scientific principles of right which they are intended to present for decision and application.
It is well settled that, for encroachments under a claim of right that is inconsistent with reversionary rights, the reversioner may have his action, though the immediate injury is merely nominal: 7 W. & S. 13. And the encroachment being established, it is impossible, except in mitigation of damages, to allow the defence that it did no material injury; for nominal damages at least must be allowed, and that.is all that was given here: 4 State P. 489. It could not contribute to good order to allow the parties to encroach upon a way on the ground that it is wider than necessary, and then ask a court and jury to sanction their act. When the right is once defined, it is the duty of the court to protect it. If one party wants it altered, he must enter into a treaty with his neighbour, and not undertake a compulsory annexation.
We think the case was rightly tried, and we do not see that the tenant had any such interest in the case as to exclude him from being a witness.
Judgment affirmed.
Woodward, J., dissented, on the ground, that-the worm fence was not an injury to the reversion.