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Stevens o. Battell.

or prevents his entry. Cases cited above; also Thompson v. Gerrish, 57 N. Hamp., 85; Filbert v. Hoff, 42 Penn. St., 97; 1 Washb. R. Prop., 418. And this, although there be no exhibition of force, but merely a denial of right. Jefcoat v. Knotts, 13 Rich. (S. C.) 50. Trespass or ejectment, at his election, lies in favor of one co-tenant against another who has actually ousted him from the premises. Murray v. Hall, 7 Com. Bench, 441; Silloway v. Brown, 12 Allen, 37.

6. The particular destruction of the subject of the tenancy by a co-tenant, is a ground for an action of trespass by his co-tenant. Cubitt v. Porter, 8 Barn. & Cress., 257; Voyce v. Voyce, Gow, 201; Maddox v. Goddard, 15 Maine, 218; Symonds y. Harris, 51 id., 14; Benedict v. Howard, 31 Barb., 569; Bennet v. Bullock, 35 Penn. St., 364; Critchfield v. Humbert, 39 id., 427.

7. An action on the case, sounding in tort, may be maintained by one tenant in common against his co-tenant, for misuse of the common property, though not amounting to a total destruction of it. McLellan v. Jenne88, 43 Verm., 183. Ejectment will lie by one tenant in common of realty, against another, in the case of an actual ouster. Peaceable ex dem. Hornblower v. Read, 1 East, 568; Bethell v. McCool, 46 Ind., 303; Noble v. McFarland, 51 Ill., 226. And after recovery in such action, trespass for mesne profits may be brought. Goodtitle v. Tombs, 3 Wils., 118. Why may not trespass lie? Ejectment furnishes no remedy for the damages.

C. B. Andrews, for the defendants.

CARPENTER, J. Here are two actions. The declaration in the suit against Battell and others contains three counts. The first is an action of trespass in common form; the second is founded on the statute for unlawfully throwing down and leaving open a certain fence; and the third is a count in case.

The second is not insisted on. In the suit against Camp and others there is a single count in trespass. Both suits relate to the same subject matter, and both must stand or fall together.

Stevens v. Battell.

The acts of the defendants which are complained of as trespasses were done by direction of the town of Norfolk and the town is the real party in interest.

The facts briefly stated are these :-In 1872 the town desired to enlarge their burying ground, and for that purpose instituted proceedings in invitum to take the locus in quo, making J. H. Stevens alone the party respondent, supposing him to be the sole owner. A decree was passed in favor of the town in December, 1873, whereby the town supposed it had acquired a perfect title to the land. The acts complained of were committed on the 230 and 24th of May, 1874.

In 1876 the town, learning that the plaintiffs had an interest in the premises, instituted a second proceeding for the purpose of acquiring their title. In May, 1877, the town had a decree in its favor and the damages assessed were paid to the plaintiffs.

The court below rendered judgment for the defendants, and the plaintiffs filed a motion in error. The record raises two questions:

1. Did the town acquire any title to or right in the premises by the decree passed in December, 1873? If it did not the defendants were clearly trespassers and judgment should have been rendered against them for some damages.

The plaintiffs claim that those proceedings were inoperative; that the town could not take the interest of one tenant in common in a part only of the common property. It is true the law will not allow one of two or more co-tenants, without the consent of the others, to sever the estate and sell his interest in a portion of it by metes and bounds. So too a creditor may not levy his execution in that manner, but must take a fractional part of the debtor's interest in the whole common estate. If the object and purpose of these proceedings were simply to acquire the interest of J. H. Stevens in the premises, thereby making the town owners as tenants in common with the plaintiffs, leaving J. H. Stevens and the plaintiffs tenants in common in respect to the rest of the undivided property, it would be

VOL. XLIX.-21

Stevens v. Battell.

difficult consistently with the decisions on that subject to give effect to that decree. But the intention was quite different from that. The town did not desire or expect a joint interest with others, but the whole title, and it was by an accident or oversight that it found itself a partial owner only. But what is of still more importance, the proceeding does not have reference to the interest of a tenant in common, but the land itself is condemned for a public use, and the object is to make compensation to the owner and extinguish his title.

In Stevens v. Town of Norfolk, 46 Conn., 227, the question was whether by the two proceedings the town had accomplished that object. This court held that it had. Conceding the petitioner's claim, that the principle governing voluntary deeds by tenants in common applied to the case, the court came logically to the conclusion that the result was a complete title in the town. The question now arises whether that principle applies, and whether the town by the proceedings against J. H. Stevens, and before the proceedings against the plaintiffs, acquired any interest in the land for any purpose. With some hesitation we have come to the conclusion that, inasmuch as it was a proceeding in rem, the land itself being condemned and taken for a public use, the town thereby acquired all the rights of J. H. Stevens and became practically a tenant in common with the plaintiffs. The reasons underlying the principle, as given by LOOMIS, J., in Stevens v. Town of Norfolk, make it evident that the principle does not properly apply to a proceeding in rem to condemn land for a public use.

2. That brings us to the second question, which is, whether the plaintiffs, under the circumstances, can maintain trespass. The claim that they can rests upon

the assumption that they were ousted by their co-tenants. That assumption however is not justified by the finding. After entering upon the land and digging some stone, and removing a portion of the fence between it and the old burying ground, preparatory to using the land for burial purposes, and intending so to use it, they evidently desisted for more

Donohue o. Maloney.

than two years; for it is found that the plaintiffs were damaged in the years 1874 and 1875 the sum of $75, “in cutting and removing the hay.” There is no finding that the plaintiffs were otherwise disturbed in their possession of the land and there is nothing to indicate that there was an actual ouster. Manifestly therefore the plaintiffs remained in the possession after the alleged trespasses, and probably in the exclusive possession.

The entry upon the land by the defendants with the intention to use it for a purpose wholly inconsistent with any use by the plaintiffs, so long as that intention was not carried into effect, did not of itself amount to an ouster; as the plaintiffs did not abandon it and elect to consider themselves ousted, but remained in possession.

It is claimed that there was a misuse of the property not amounting to a destruction of the common estate, for which case will lie. If in any case such an action may be maintained we do not think the facts now before us will justify it. Nothing was done by the defendants which might not have been done by any tenant in common on the common land, and that might not have been done purely for agricultural purposes. The fact that it was done for a different purpose, so long as it was not accomplished, and the plaintiffs did not elect to treat .it as accomplished, will not subject the defendants to an action.

Our conclusion therefore is that there is no error.

In this opinion the other judges concurred.

WILLIAM DONOHUE AND ANOTHER V8. WILLIAM H.

MALONEY AND ANOTHER.

The 4th and 12th sections of the statute with regard to intoxicating

liquors (Gen. Statutes, tit. 16, ch. 14, part 2,) which provide that liquors intended to be sold in violation of law shall be a nuisance and that no 'action shall be maintained for the possession of them, are not limited in

Donohue v. Maloney.

their application to the case of liquors seized as a nuisance by legal proceedings, but apply to all liquors intended to be sold contrary to law and

to all suits for the recovery of possession of them. Held therefore that, where C was in possession of a stock of liquors in a

saloon kept by him, but which were in fact owned by D, for whom C was acting as agent in selling them contrary to law, and the liquors were levied upon as the property of C by one of his creditors, D could not maintain an action of replevin against the levying creditor to recover possession of them.

REPLEVIN for a quantity of liquors; brought to the Court of Common Pleas of Hartford County, and tried to the court before Calhoun, J. Facts found and judgment for a return of the liquors to the defendants. Motion in error by the plaintiffs. The case is sufficiently stated in the opinion.

W. F. Henney and D. J. Griffin, for the plaintiffs.

E. Johnson and S. 0. Prentice, for the defendants.

PARDEE, J. On July 15th, 1880, John Cronin was keeping a retail liquor saloon in Hartford apparently on his own account, but in fact as the agent of the plaintiffs, who then and there held intoxicating liquors contrary to law for the purpose of selling the same in violation of law. On that day the defendants, having an execution against Cronin, caused it to be levied on the liquors; three days later these were returned to them on their complaint in replevin; that complaint came to the Court of Common Pleas; that court held that the liquors were a nuisance, and that the plaintiffs could not maintain their action for possession, and ordered their return. The plaintiffs filed a motion in error, assigning for error that section twelve, page 272, of the Revision of 1875, applies only to liquor seized as a nuisance by legal proceedings.

For the preservation of public health, peace and welfare the legislature has power not only to place limitation upon individuals as to the manner in which they may use or enjoy their property, but also to declare that a certain kind of

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