Upon the facts stated I am of opinion this action can be maintained. It is true, as the defendant's counsel says, that, under the decisions in this state the plaintiff might maintain all action of trespass quare clausum without a reentry, even admitting the defendant to be a disseizor. But it is impossible to see how that call abridge another remedy which is clearly open to him at common law.
The defendant is in possession under a deed which unquestionably carries his boundary to the face of the wall next the brook. He has occupied under the deed to the limit thus described. Under these circumstances can there be any doubt but the plaintiff may, at his election, treat him as a disseizor? It is probably sufficient, however, that he was in the actual possession and occupancy of the premises at the time of the injury complained of; and if he has maintained a nuisance there from which the plaintiff has suffered special damage, I see no reason *Page 382 why he may not recover for such damage in an action on the case as well as though the nuisance had been maintained on land of which he was owner in fee.
The consequences suggested by his very able and learned counsel by no means follow. The plaintiff cannot recover in this suit for any of Sulloway's wrongful acts; nor can he recover for the entry upon or occupation of his land by the defendant. So far as regards this suit, it stands the same as though the wall were maintained by the defendant on his own land, and the maxim sic utere, c., applies. The plaintiff can only recover for the injuries set up in his declaration, — that is, for causing the brook to overflow and wash away his land, injury to his cranberry bed,c. If no such injury has resulted from maintaining the wall, then, of course, the plaintiff fails in his proof, and will not be entitled to recover.
SMITH, J.
This action is not trespass quare clausum for breaking and entering the plaintiff's close, building a wall upon his premises, and filling in with earth; nor is it a writ of entry to recover possession of the strip of land thirteen feet in width, of which the defendant and his grantor have disseized him; — but the action is case for maintaining a nuisance whereby the plaintiff's land west of said strip thirteen feet in width has been overflowed and washed away, and his cranberry bed injured, c.
The defendant claims that, as the nuisance is erected upon the land of the plaintiff, the action is misconceived; that the plaintiff should have brought trespass and not case.
In 1863 the defendant's grantor entered upon the plaintiffs land thirteen feet westerly of the true line, put in a bank wall, and filled in easterly of the wall with earth, cultivating, and occupying the same as his own premises. In 1866 he conveyed the same to the defendant, bounding him on the west by the easterly line of the bank; and the defendant has since occupied up to the wall as part of his premises. From 1863 to the present time, therefore, the defendant and his grantor have occupied this strip of land, holding the plaintiff out. I think it must be very clear that the defendant is estopped to deny that he does not own the premises. He cannot be permitted to take advantage of his own wrongful act to defeat the action of the owner whom he and his grantor have excluded from the enjoyment of his own property.
This action can be maintained, but the plaintiff cannot recover for the trespass to the premises, which the defendant occupies, nor for any other injuries than those occasioned to his premises, not so occupied by the defendant, by the building and keeping of the wall and embankment. Whether he recovers any damages, and if so, how much, depends upon his ability to show that by means of the wall and embankment his land adjoining on the west has been injured, as alleged in the declaration.
Case discharged. *Page 383