such persons; and in all cases to be estimated to the time of recovering judgment for such damages, but not to exceed six years in the whole in any case."* Such damages are not to be estimated, however, for the use of any permanent improvements made after the death of the husband by his heirs, or by other persons claiming title.+

And it is further enacted, that where dower is recovered in lands that have been aliened by the heir, the wife shall be entitled, in an action on the case, against the heir, to recover her damages for withholding the dower from the time of the husband's death to the time of the alienation, not exceeding six years in all, and any damages so recovered against the heir, or in the dower suit against the heir's grantee, are to be respectively deducted from each other. The provision which gives damages from the time of the husband's death, is an affirmance of the doctrine laid down by the Supreme Court of New York in an early case.§

In a somewhat recent case, the construction of this Statute was settled; and it was held that where lands were aliened by the husband, the value was to be computed as at the time of the alienation, and no more; and it was further held, that when the widow brings ejectment for dower, although before admeasurement, she is entitled to costs. T

On this point, independently of any statutory provision, some perplexity exists, and the greatest authorities of American law, Chancellor Kent and Mr. Justice Story, are divided. The authorities, both English and American, have been fully exam

* 1 R. S., 742 and 748, § 19 and 20.

+ Sec. 21.

2 R. S., 748, § 22. In Virginia, the widow recovers damages against an alienee so far forth as profits are concerned, only from the date of the subpœna, Tod vs. Baylor, 4 Leigh's R., 498. In Maryland, from the time of the demand and refusal to assign; Steiger's Adm. vs. Hillen, 5 Gill. & Johnson, 121. In New Jersey, see Woodruff vs. Brown, 2 Harrison's N. J. Rep., 246.

§ Hitchcock vs. Harrington, 6 J. R., 290. See, also, Jackson ex dem. Clark vs. O'Donaghy, 7 J. R., 247. Humphrey vs. Phinney, 2 J. R., 484. Dorchester vs. Coventry, 11 J. R., 510. Dolf vs. Basset, 15 J. R., 21. Shaw vs. White, 18 J. R., 179. Coates vs. Cheever, 1 Cow., 460.

| Walker vs. Schuyler, 10 Wend., 480.

¶ In Massachusetts, see on this subject, Rev. Stat., tit. Dower, and Leonard vs. Leonard, 4 Mass., 583. Miller vs. Miller, 12 Mass., 454. Conner vs. Shepherd, 15 Mass., 168, 167. Ayer vs. Spring, 10 Mass., 80. Perry vs. Goodwin, 6 Mass., 498, 499. Leavitt vs. Lamprey, 13 Pick., 882. Stearns vs. Swift, 8 Pick., 582.

ined by Mr. Justice Story, on the Massachusetts circuit,* and the result arrived at by him is, that when the heir builds on or otherwise improves the estate, the widow shall have her dower of the improvements, otherwise as against a purchaser; but that, as against the latter, the dowress is to have the benefit of any enhanced value of the land between the alienation and the assignment of dower, arising from the general progress and population of the country. So, if the land has depreciated, she sustains the loss.t

On the other hand, Mr. Chancellor Kent has critically examined the subject in his Commentaries, and declares it to be the ancient and settled rule of the common law, that the widow takes her dower according to the value of the land at the time of the alienation, and not according to its subsequent or improved value, though he assented as to the right of the dowress to be allowed for increased value, arising from extrinsic or general causes.‡

In this conflict of authorities, it becomes me only to state the doubt as it exists.§

* Powell and wife vs. Monson & Brimfield's Manufacturing Co., 8 Mason, 847.

+ Leggett vs. Steele, 4 Wash. C. C. R., 805. Coke's Littleton, 82 a. Perkins, Dower, § 828, 829. Bacon's Abr. Dower, B. 5. Gilbert's Tenures. Gore vs. Brazier, Mass., 528, 584. Lebby vs. Swett, Story's Pleadings, 865. Catlin vs. Ware, 9 Mass., 218. Ayer vs. Spring, 9 Mass., 8. S. C., 10 Mass. R., 80. But in New York the point seems doubtful. Humphrey vs. Phinney, 2 J. R., 484. Dorchester vs. Coventry, 11 J. R., 510. Shaw vs. White, 18 J. R., 179. Hale vs. James, 6 J. C. R., 258. Roper, Husband and Wife, ch. 9, § 8, 846, 847. In Pennsylvania and Ohio, Mr. Justice Story's doctrine is upheld. Dunsett vs. Bank of the U. S., 6 Ohio R., 76. Thompson vs. Morrow, 5 Serg. & Rawle, 289.

Com., Vol. IV., 65.

§ See Tod vs. Baylor, 4 Leigh's R., 498, in Virginia, which excludes improvements. Wilson vs. Oatman, 2 Blackf. Ind. R., 223. Mahoney vs. Young, 8 Dana's Ken. R., 588. Wall vs. Hill, 7 Ib., 172. Wooldridge vs. Wilkins, 8 Howard's Miss. R., 860.

In Virginia the Act, 1 Rev. Code, Ch. 118, § 1, 468, which authorizes the recovery of damages in writs of right, intends such damages as may be recovered in actions of trespass for mesne profits. Purcell vs. Wilson, 4 Grattan, 16. See a recent English case, Garrard vs. Tuck, 8 Man. Gr. & S., 281, of dower unde nihil habet, where it was held that the exact number of acres of land in respect of which dower is demanded is not material in a writ and count in dower. And see the same case as to the effect of outstanding terms, and setting aside and quashing writs of error.

CHAPTER V.

MEASURE OF DAMAGES FOR WRONGFUL INTERFERENCE WITH REAL PROPERTY.

The Rule of Damages in actions for wrongful interference with the occupation or enjoyment of Real Estate-Trespass to Real Property-Case-Nuisance-Waste.

WE have already seen,* when treating of the subject of nominal damages, that every unauthorized entry on the real estate of another, whether actual injury be or be not thereby inflicted, lays the foundation for a claim to at least nominal damages.† So says the Supreme Court of Connecticut, "An injury, legally speaking, consists of a wrong done to a person, or in other words, a violation of his right. For the vindication of every right there is a remedy. When, therefore, there has been a violation of a right, the person injured is entitled to an action. If he is entitled to an action, he is entitled to at least nominal damages, or else he would not be entitled to a recovery. Such damages are given in order to vindicate the right which has been invaded, and such further damages are awarded as are proper to remunerate him for any specific damage which he has sustained. It is on this principle that a person may sustain an action of trespass for an unauthorized entry on his land, although he show no actual specific damage to have thereby accrued to him, and even although the defendant may prove that such act was beneficial to the plaintiff." And we have also considered the rules of compensation where the possession of real property has been wrongfully withheld. The present division of our subject is consequently reduced to narrow limits.

200.

* Supra, Ch. II., 46, et seq. So in Texas, Carter et al. vs. Wallace, 2 Texas R.,

+ So even an entry on the plaintiff's land for the purpose of taking away the defendant's own property, is a technical trespass. Heermance vs. Vernoy, 6 J. R., 5. Blake vs. Jerome, 14 J. R., 406. But it has been held otherwise in Pennsylvania, if the chattel was wrongfully taken away. Chambers vs. Bedell, 2 Watts & S., 225. + Parker vs. Griswold, 17 Conn., 288.

As a general rule, the remedy for illegal entries upon real estate or interference with its enjoyment, is either by an action of trespass, or trespass on the case, or proceedings as for nuisance; in all these proceedings the rules are analogous, and the measure of damages is the amount of injury directly resulting from the act complained of.

It is well settled in England, and generally in the United States, that to entitle the plaintiff to bring an action of trespass quare clausum fregit, possession in fact is indispensable.* And as against a wrong doer bare possession is sufficient.†

And it results from this same rule, that if the trespass amount to an ouster of the plaintiff, he can recover damages only for the trespass itself or first entry, for though every subsequent wrongful act is a continuance of the trespass, yet to enable the plaintiff to recover damages for these acts there must be a reentry.+

It will be borne in mind, in the consideration of the present division of the subject, as we have already had occasion to notice, that as the jury in actions of tort are not restrained to the

* 3 Wooddeson, 198, 194. Bedingfield vs. Onslow, 8 Lev., 209. The general doctrine that trespass quare clausum fregit will not lie by lessor out of possession against a stranger for an injury to real property, is well settled in New York. Campbell v8. Arnold, 1 J. R., 511. Stuyvesant vs. Dunham, 9 J. R., 61. Wickham vs. Freeman, 12 J. R., 183. Unless where the plaintiff shows title to lands not in the actual possession of any one; in which case the possession follows the title. Van Rensselaer vs. Radcliff, 10 Wendell, 689. Holmes vs. Seely, 19 Wend., 507; and so in Massachusetts, Lienow vs. Ritchie, 8 Pick., 235. French vs. Fuller, 23 Pick., 104. And it is equally well settled in Ohio, Miller vs. Fuller, 4 Hammond's Ohio R., 433. And in Kentucky, Foster vs. Fletcher, 7 Monroe, 586. Owings vs. Gibson, 2 A. K. Marsh, 515. Carrine vs. Westerfield, 8 A. K. Marsh, 331. In Texas, also, a lessor cannot maintain an action for a trespass committed on the leased premises while in possession of the tenant; the lessee alone can sue; Reynolds vs. Williams, 1 Texas, 811. In the ordinary case of carrying on a farm at the halves, the owner is not so far divested of the possession but that he may maintain trespass for injury to the inheritance; Cutting vs. Cox, 19 Verm., 517. And if the plaintiff have the right of property, and of immediate possession, he may maintain trespass though not in actual possession; Mason vs. Lewis, 1 Iowa, 494; Poole vs. Mitchell, 1 Hill, S. C., 404. In Connecticut, it has been decided that a plaintiff in trespass, having the sole and exclusive possession, may recover against a wrongdoer the whole damage done by him, though the conveyance from some of those under whom he claims was defective; Curtiss vs. Hoyt, 19 Conn., 154. + Chambers vs. Donaldson, 11 East, 66; Graham vs. Peat, 1 East, 244; First Parish in Shrewsbury vs. South, 14 Pick., 297; Branch vs. Doane, 18 Conn., 233. Holcomb vs. Rowlins, Cro. Eliz., 540. Monckton vs. Pashley, 2 Ld. Raym., 974. S. C., 2 Salk., 688. Black. Com., Lib. III., 210. Case vs. Shepherd, 2 J. Cases, 27. Holmes vs. Seely, 19 Wend., 507; and so in Ohio, Rowland vs. Rowland, 8 Ohio R., 40; and in Kentucky, Shields vs. Henderson, 1 Lit. Rep., 239.

§ Supra, 38.

amount of the mere pecuniary loss sustained by the plaintiff, he is always at liberty to give in evidence the circumstances which accompany and give character to the trespass.* And if the act be malicious or oppressive, exemplary damages may therefore, be recovered. But of this we shall have occasion to speak more fully when we come to consider the rule of damages in regard to torts in general.

We have also seen, that the plaintiff is limited to the immediate consequences of the wrongful act, and that remote damages are not allowed.§ In Maryland, however, in trespass quare clausum, the plaintiff has been allowed to give evidence of damage to his crop, occasioned by reason of the defendant driving away his negroes. And if the defendant, while a trespasser on the plaintiff's land, commits any other distinct trespass for which a separate action would lie, yet such acts of trespass and their consequences may be alleged and proved in aggravation of damages. Thus in an action for breaking and entering the plaintiff's house, the debauching of his daughter and servant, and the consequential damages to the plaintiff, may be laid in aggravation.¶

So in trespass for the entry of diseased cattle, damage from infection may be stated in aggravation, and so in Connecticut, in an action of trespass quare clausum fregit, where the defendant's sheep, while trespassing on the plaintiff's land, mingled with his sheep and communicated to them a dangerous disease of which many died, it was held that the plaintiff might recover for the loss of his sheep as well as the breach of his close, and that the defendant's knowledge of the existence of the disease might properly be considered by the jury in estimating damages.** So spoliation or asportation of trees may be laid as aggravation in this form of proceeding.++ And the value of

Starkie's Evidence, vol. ii., 1114. Trespass. Damages.

+ So in Alabama, Mitchell vs. Billingsley, 17 Ala., 891.

Supra, 57, et seq.

Loker vs. Damon, 17 Pick., 284, and supra, 94.

Johnson vs. Courts, 3 Har. & M'Hen., 510.

Starkie on Evidence, vol. ii., 1114. Bennett vs. Alcott, 2 T. R., 166. The rule

is the same in Kentucky, Wright vs. Chandler, 4 Bibb, 422.

** Barnum vs. Vandusen, 16 Conn., 200.

++ Anderson vs. Buckton, Strange, 192. Should not the term aggravation be limited to acts of malicious insult or injury accompanying the principal transaction?