Foster v. Elliott

Day, J.

a. pleading: of. The principal question presented by the record is, whether the allegations of the petition are broad enough to cover a trespass committed outside of the surveyed limits oi the road m question, $ it seems to us quite apparent from the entire structure of the first count of the petition, that the action was instituted so far as the allegations of that court are concerned, to recover damages for opening the road, upon the ground that the conditions precedent to the taking effect of the order establishing the road had not been performed.

This portion of the petition alludes with particularity to the preliminary steps taken for the establishment of the road, and sets out the order of the county court establishing said road, “ to take effect when applicants make said route in good traveling condition at their own expense.”

And then the plaintiff, anticipating that defendants would justify their conduct under a legal authority to open the road, alleges facts tending to show a non-compliance with the conditions upon which the order establishing the road was to take effect. It is alleged that “ at the point where said located road crosses White Breast river, and on the north side thereof there is a large hill or bluff which is utterly impassable without, great labor and expense, and that the aforesaid • stream at the point where said road crosses the same cannot be, and never has been, forded; that the said stream at that point can only be crossed by means of a bridge, which will cost a considerable sum of money, and that the signers of said petition and the applicants for the establishment of said road have never opened or attempted to open the same.” Now, all of thjs is wholly unnecessary and entirely inexplicable upon the theory that the action is brought to recover damages for a trespass at large upon the forty acre tract of land through which the road passes.

But the intention to limit the action to a particular locality becomes more apparent by an examination of that portion of the petition which charges the' defendants with the wrongful act complained of. It is therein averred that “ said Levi Tucker, after serving notice on petitioner to remove his fences from across said located line, did, while pretending to act in capacity of road supervisor, in company with the other defendants herein named, tear down said fences.”

There is no uncertainty as to the fences the road supervisor notified the plaintiff to remove. They were the fences across said located line, and the fences torn down by defendants are made equally certain. They were said fences, to wit: The fences across said located line. Thus far the construction of the petition is plain.

The second count of the petition, however, seems to be broad enough to cover an injury committed outside of the line of said road.

In it it is alleged “that on or about the 16th day of February, 1870, the defendant, John Elliott, acting as road supervisor, in the district where said premises are situated. * * * Entered upon said premises, tore down the fences inclosing the same, and which fences also cross the points where said road was laid out through the same.”

Here the words said premises evidently refer to the forty acres of which plaintiff was tenant, and the fences inclosing the same can refer to nothing but the fences around said forty acre tract.

The statement “ which fences also cross the points vihtre said road ivas laid out through the same ” cannot, by any fair and natural construction, be held to limit the trespass to so much of said fences as stood upon the line of said road. The reasonable construction of this language is to limit the claim for damages to the entire lines of fence which cross the road at its points of entrance upon and exit from the premises. The rule of the common law that every thing shall be taken most strongly against the party pleading does not obtain under our statute. In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. Rev., § 2951; Gray v. Coan, 23 Iowa, 344.

The court below seems to have considered that no question was made in the issue as to any act committed outside the line of road, and held the eighth finding to be, under the issue, wholly immaterial. In this the court erred.

3. damages : nomma1 dam-II. It is urged, however, that it does not appear that plaintiff has sustained damage by the removal of this eight feet fence. The answer is, that when a right jnvaded or a wrong done, and no particular damage is proved, the law implies or infers nominal damage.

4. trespass : action by ten-III. Again, it is claimed, that the plaintifl, being merely a tenant, cannot recover damages for the removal of the fence. The gist of the action of trespass is an jnjmy t0 the possession. For a wrongful act which lessens the tenant’s enjoyment or impedes him in the legitimate use of the property of which he is in possession, it is clear to us that he may maintain an action of trespass. And that the throwing down of fences, around lands held for agricultural purposes, will produce such results, no one will deny.

IV. It is claimed that a road supervisor is not liable as a trespasser, if he does no more than is necessary in making, repairing, or opening roads, and acts in good faith, believing himself within the limits thereof. As no such question seems to have been considered by the court below, and we have not the evidence from which the facts can be determined, we deem a decision of this question unnecessary to the purposes of'the present appeal.

For the error of the court in eliminating the eighth finding of fact, the judgment is reversed, and the cause remanded, for further proceedings consistent with this opinion.

Reversed.