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468 510 335 699 179 335

V.

544 353

West Jersey Traction Co. V.
Shivers

29 Vroom 124.
Weston New York Elevated
Railroad Co....

73 X. Y. 595. Weston . Pennsylvania Railroad Co.

45 Vroom 484. Whitaker v. Hawley.

25 Kan, 674. Williams y. Davis

1 Penn. 277.. v. Hutchinson

· N. Y. 312. v. Voorhees

51 Vroom 179. Williamson v. Wright.

2 Penn. 984. Willworth Boston Elevated Railway

188 Mass. 220. Winants v. Jersey City.

13 room 349. Winter v. New York and Long Branch Railroad Co...

37 Vroom 677, 679. Winter v. Paterson..

1 Zab. 524.. v. Warmolts.

11 Vroom 615.. Wise v. Delaware, Lackawanna

and Western Railroad Co....... 52 Vroom 397. Wolfe v. L. L. & Globe Insurance Co.

21 Vroom 453. Wong Wai v. Williamson.

103 Fed. Rep. 1. Wood v. Brown

1 Stark. 217. v. Fithian

4 Zab. 838. Woodside v. Adams.

11 Vroom 417. Woodward v. Emmons.

32 Vroom 281. Worley v. Glentworth.

5 Halst. 241. Worman v. Seybert.

19 Vroom 176. .

402 304 206

467

530 228 126

99

334 175 129 335

Y.

306

Young v. Crane

38 Vroom 453... Young v. Delaware, Lackawanna

and Western Railroad Co....... 39 Vroom 603. Young v. Hughes.

J Stew. Eg. 372.

20 439

Z. Zellers v. Delaney.

51 Vroom 452. Zindler v. Public Service Railway Co.

19 Vroom 536.

557

394

CASES DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW JERSEY.

FEBRUARY TERM, 1911.

JAJIES T. ACKERMAN ET AL. V. Al'RORA B. ELLIS.

Argued November 2, 1910--Decided April 20, 1911.

1. A nuisance which does damage to land is an injury to the pos

session thereof. and creates a right of action in favor of the

occupant. 2. An agent who carries out the instructions of his principal, know

ing that in so doing he will commit a tort, and actuated by a desire to injure the person who will suffer from the wrongful act, cannot escape personal responsibility under cover of his

agency. 3. Trees that overhang the premises of another are a nuisance to

the extent that their branches spread over such premises, with

out regard to the insignificance of the injury resulting therefrom. 4. A tenant, in possession of land upon which trees are growing

that overhang adjacent premises to the nuisance of the owner thereof, is not responsible to that owner for damages resulting from the nuisance merely because he maintains the demised land in the condition in which it came to him.

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Before GUMMERE, CHIEF JUSTICE, and Justices TRENCHARD and MINTURN.

For the plaintiff's, James T. Ackerman, pro se.

For the demurrant, Michael Dunn.

The opinion of the court was delivered by

GUJMERE, CHIEF JUSTICE. The declaration in this case contains three counts, and the defendant demurs separately to each of them.

The first count avers that the plaintiffs were lawfully in possession as tenants in common of a certain tract of land in the township of Midland, in the county of Bergen; that the defendant, contriving and wrongfully intending to injure the plaintiff's in their possession, use, occupation and enjoyment of the premises and to render the same barren and unfit for habitation, use, tillage and pasturage, wrongfully and injuriously planted, or caused to be planted, in a careless, negligent and improper manner a great number of poisonous or noxious trees, to wit, thirty-five spruce trees and other poisonous or noxious trees, in a row, so close to the property line of the. plaintiffs that the roots, branches, limbs and leaves thereof grow, hang over anl fall upon the plaintiffs' premises: whereby the premises are rendered barren, incommodious and unfit for use. The second count avers that the defendant wrongfully and injuriously maintained, and continues to maintain, similar trees adjacent to the plaintiffs' property line and with like injurious result to plaintiffs' premises. The third count is similar to the second, averring that the defendant maintains trees of the character mentioned so close to the line of the plaintiffs' lanıl as to be a nuisance unless they are so trimmed and curtailed as to prevent them from overhanging or encroaching upon the plaintiffs' premises, and that the defendant neglects to trim and curtail them so as to prevent such encroachment or overhang.

Several grounds of demurrer to the first count are specified. The first one argued, or rather suggested, in the brief

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of counsel, is that the count is defective because it fails to aver that the plaintiffs are the owners of the fee of the land which they claim has been damaged by the wrongful act of the defendant, the injury, it is said, being to the fee and not to the possession. If ownership was necessary to be averred. the statement of the count that the plaintiffs were in possession as tenants in common is, we think, a sufficient averment of that fact. It is not necessary, however. A nuisance like a trespass upon land is an injury to the possession and creates a right of action in favor of the occupant. So distinctly is this the fact that the owner of land, which is in the possession of his tenant, is liable to that tenant for a nuisance created by him upon adjacent land which affects injuriously the tenant's leasehold interest. Alston v. Grant, 3 El. & Bl. 128.

The principal ground of demurrer to this count is that “it fails to state that the defendant had at the time of the planting of the trees any interest whatever in the land upon which they were planted, either as tenant or owner.”

." The argument is that no liability rests upon the defendant to answer for the damage of which the plaintiffs complain unless she had some interest in the land upon which she planted, or caused to be planted, these trees; that if in doing what she did she was acting merely as the agent of the owner or tenant she is not answerable to the plaintiffs for the injury done to their property; and that as the rules of pleading require that everything shall be taken most strongly against the pleader, it must be presumed that she was acting as the agent of the owner or tenant. This argument, however, is based upon an erroneous conception of the law. A person who creates a nuisance, whether on his own land or not, is liable to others for the damage which they sustain by reason of his wrongful act. East Jersey Water Co. v. Bigelow, 31 V'room 201, 205. And the liability exists even when in the creation of the nuisance such person is acting not for his own benefit but as the agent of another. Thompson v. Gibson, 7 M. & 11. 156, 460. 4 fortiori, if an agent carries out the instructions of his principal, knowing that in doing so he will commit a tort,

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