Branch v. Doane

Storks, J.

The first question in this case, is, whether Jonathan Branch was a competent witness for the plaintiff.

The defendant concedes, that he was not interested in the event of the suit, not being entitled to any portion of the damages which might be recovered, nor liable to the plaintiff, if she failed to recover. But he claims, that the witness was *411 interested in the record, as an instrument of evidence in his fa vour, if the plaintiff succeeded. a» .

Nothing appears in the motion as to the-interest or estate of the plaintiff in the premises to which the injury is alleged to have been committed, excepting that, the witness being the owner thereof, the plaintiff erected the mill thereon, by his licence and permission, and ever since the erection of it, used and occupied it, in the same manner as if she was the owner thereof. It is insisted by the defendant, that such licence, in connexion with such use and occupation, conferred on the plaintiff a leasehold estate at will, and created the relation of landlord and tenant between them ; and therefore, that there was such a privity of interest that the rule of evidence founded on such privity, is applicable to this case.

There is no doubt that any words which are sufficient to denote the intention of the parties that one shall divest himself of the possession of land, and the other come into it, are enough to constitute, and will in legal construction amount to, a lease, as effectually as if the most apt 'and pertinent words had been used for that purpose, provided the transaction does not want, in any other respect, the constituents necessary to make a lease ; and it is immaterial whether the words are in the form of a licence, covenant or agreement. Bac. Abr. tit. Leases, &c. K. Evans v. Thomas, Cro. Jac. 172. Hall v. Seabright, 1 Mod. 14. Thus, if one “licence” another to enjoy such a house or land from such a time to such a time, it is a lease. Bac. Abr. ubi supra. So if one “ licence” another to inhabit, or to come upon his dock and carry on his trade, it amounts to a lease. Right d. Green v. Proctor, 4 Burr. 2209. Anon. 11 Mod. 42. But such language does not necessarily, and independent of any thing more to show that there was a contract between the parties, constitute a lease. A lease is more than a mere licence ; it is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent or other income on the other; or, in other words, a conveyance to a person for life, or years, or at will, in consideration of a return of rent or other recompense. 4 Cruise’s Dig. 67. Jackson d. Webber & al. v. Harsen & al. 7 Cow. R. 326. 3 Blk. Com. 317. If, therefore, the words, whatever they may be, which confer authority to another to take possession of land, are not accompanied with *412 language or stipulations which evince such a contract between the parties, they would amount to a mere licence, which would indeed be a sufficient excuse on a charge of trespass by the owner, but would not amount to a lease, nor convey an estate or interest in the land. From the statement in the motion in this case, it is certainly the just inference, that the plaintiff was in possession merely by the licence and permission of the witness, without any agreement for compensation express or implied, and not by virtue of any arrangement or understanding which would constitute a contract between them. It does not appear, that there was any consideration for the licence given to the witness ; or that it was to continue for any definite period ; or that there vras any agreement as to the nature of the occupation ; or in short, that there were any stipulations, by which the parties were mutually bound to each other, or which either of them could enforce against the other. Nothing is disclosed to show that the plaintiff did not go into the possession and occupy under a mere naked licence from the witness, which clearly would not constitute a lease or a contract, of any other description. If the licence was connected with any terms or stipulations, which would amount to a lease of the premises to the plaintiff, and confer upon her an interest or estate therein, it would certainly be most natural to state expressly, that she was in possession under a lease, and not merely that she occupied and used it by the licence and permission of the witness, which is by no means equivalent, or else to give the terms of the contract or understanding between them, so that the court could certainly determine whether the plaintiff derived any estate or interest in the premises from the witness, and therefore, whether there was what the law deems a privity between them. But it is sufficient to say, that if it is important that such an interest or estate should exist in the plaintiff, in order to raise an objection to the competency of the witness on that ground, it should be made to appear on the motion. Every person being offered as a witness being presumed to be competent until the contrary appears, it was incumbent on the defendant to show the facts requisite to exclude the witness offered in this case. Whether under the circumstances, a foundation would be laid for the interposition of a court of equity in behalf of the plaintiff against the owner, or how far the latter could avail him *413 self of the benefit of what has been done by the plaintiff under the licence, the facts disclosed in the motion do not enable us - to determine, nor is it here necessary to inquire. In this view of the case, there was no such relation existing between the plaintiff and the witness as created any privity of contract or estate between them. The witness was not bound to defend the plaintiff in the possession of the premises, nor to vindicate any of his alleged rights founded on such possession ; nor could he be called upon to aid the plaintiff; nor would he have any right to interfere, in any manner, in this suit. Therefore, on the ground of privity, the witness was not incompetent.

The relation of the plaintiff to the witness would, at the utmost, be that of a mere servant, although it is difficult to perceive how even such a relation would be created by a mere licence, at least any further than to affect the owner by acts authorized by such licence, as having been done by his permission and authority, and in law consequentially by himself. Viewed in this the most favourable light for the defendant, the question would be, whether a master, in an action brought by his servant, in which the former has not assumed, and is not bound to assume, the prosecution of the suit, and is not interested in any damages which may be recovered, and where there can be no liability over by the former, if the latter should fail to recover, is a competent witness for the servant. The answer must depend on whether the record in the suit could be used as evidence, in another suit, by the master in his favour, or by the defendant against him. The only case, which gives any semblance to the claim that such record would be admissible in a subsequent suit to which the master is a party, is Kinnersly v. Orpe, 2 Doug. 517 ., where, in an action for trespass in the plaintiff’s fishery, a verdict for the plaintiff in a former action against one who had justified as the servant of one Cotton, although held not to be conclusive, was admitted as evidence against the defendant, upon its appearing that the defendant had also acted by the command of said Cotton. The authority of this case has been much questioned. Mr. Phillipps, in his treatise on Evidence, says, that it is not easy to reconcile it with the general rules of evidence. The correctness of the decision is strongly doubted, by Lord Ellenborough, in Outram v. Morewood, 3 East, *414 346; and Spencer, J., in Case v. Reeve, 14 Johns. R. 82, concurs in that doubt, and says, that it is reconcileable with the rules of evidence on the ground only that both suits were substantially against Cotton himself, inasmuch as the acts of trespass were committed by his express direction, for the very purpose of trying the right to the fishery, and that though there were nominally different defendants, he defended both suits, and was substantially the real defendant; and the decision is placed on that ground, by Mr. Starkie, in his treatise on Evidence, vol. 1. p. 260. (3d Land, ed.) But whatever may be thought of the correctness of that decision, it has no bearing on the question before us, since there was no such relation between the plaintiff and the witness, in the present case, growing out of any actual or legal connexion between them, that the witness can be deemed to be a party in any sense to the action. The question would be a more difficult one, if, by virtue of the relation of landlord and tenant between the plaintiff and the witness, there had been a legal privity between them ; but it is unnecessary to determine how it would have stood in that case, as no such relation is shown to have existed.

With respect to the testimony of Smith, we think that the court below properly left it to the jury to determine whether it proved, that, during the three years when he tended the mill, he occupied as tenant of the plaintiff, or jointly with her, or as her servant. It does not appear for which of the parties he was called as a witness; nor at the instance of which party his testimony, as detailed, was given ; nor whether it was elicited on his direct or cross examination, or both. We are aware of no principle, which required the court, as matter of law, on the circumstances stated by him, to determine as to the character in which he occupied the mill. Those circumstances were only evidential of the character of his occupation, and were therefore proper to be submitted, not to the court, but to the jury, for them to weigfi them, in connexion with the credit due to the witness, and to determine the main fact in controversy between the parties, to which that testimony applied, in regard to the character of such occupation.

The defendant claims, that the jury should have been instructed, that if they found that, during a part only of the time when the land was overflowed by the defendant, the plaintiff *415 was in possession jointly with Smith, the plaintiff could not recover for any of the damages sustained during that period. - If, during the whole time for which the plaintiff claimed to recover, he owned the land jointly with another person, it is well settled, that the defendant'could not take advantage of1 the fact of such ownership to defeat the suit, except by plea in abatement for the non-joinder of such other joint owner as plaintiff; and that he could otherwise avail himself of it only in the apportionment of damages on the trial. This is conceded by the defendant; but he claims, that as the time covered by the declaration embraced a period when the plaintiff owned jointly with another, and also a period when she was sole owner, it was not competent for the defendant to plead in abatement the non-joinder of the other joint owner ; and therefore, as the plaintiff claimed to recover damages during both of these periods, the only mode by which advantage could be taken of such non-joinder, was, by an objection to the evidence of damages during the time of such joint ownership, or to the recovery of any damages for that period. It is claimed to be the only mode in which the defendant could enforce the right of having the action brought by all the joint owners.

On the question whether, as to that portion of the time embraced in the declaration, when the plaintiff was a joint owner with Smith, a plea in abatement could have been properly interposed by the defendant, and the writ abated as to the cause of action relating to that time, for the non-joinder of Smith, we have been referred to no authorities. According to the general rules which prevail as to pleas in abatement, there appears to be no substantial objection to a plea of that description as to that portion of the time ; nor are we aware of any technical difficulty which prevents it; and it would be manifestly unjust to allow a plaintiff, by uniting in his declaration causes of action in favour not only of himself alone, but also of himself and another person, to prevent the defendant from availing himself, by the only appropriate plea, of the objection that the latter was not made a party plaintiff, in the same manner, and to the same extent, as he might have done, if the suit were only for a single cause of action in which both were jointly interested, ft is a well established principle in pleading, that when a cause of action is divisible, the writ *416 is divisible, and may be abated in part, and remain good for the residue ; and therefore, the defendant may plead in abatement to part, and demur or plead in bar to the residue of the writ. 2 Sound. Rep. by Williams, 210. a. note 1. 1 Chitt. Pl. 458. (8th Am. edition.) This is laid down as a general principle, although the mode of applying it is different, according as it does, or does not, appear by the plaintiff’s own showing on the face of his writ or declaration, that as to a part of the cause of action the writ is abateable. In God-frey’s case, 11 Rep. 45. b. it was resolved, that if the plaintiff, in his action, brought either upon a general writ, such as debt, account, or the like, or on a certain and particular one, as assumpsit, trespass, case, &c. demands two things, and it appears from his own showing, that he cannot have an action or better writ for one of them, the writ shall not abate in the whole, but stand for so much as is good ; but if it appear that he has a cause of action for both the things demanded, but the writ is not the proper writ for one of them, but he may have another for it in another form, the whole writ shall abate. Thus, in detinue for a box with charters and muniments concerning the plaintiff’s inheritance, where the plaintiff declared for four charters come to the defendant’s hands by trover, and entitled himself well to three, and it appeared by his declaration, that the fourth concerned land whereof the plaintiff and his wife were jointly seised, because this went to the action as to the husband, for he alone could not have another action, for that cause it was adjudged, that the writ should stand good for the residue. So, if executors bring an action on the slat. 4. Edw. 3. c. 7. de bonis asportails in vita testato-ris, for breaking the testator’s close, and taking away a certain sum of money in the testator’s life time, though the writ will not lie for breaking the close, yet it is good for taking away the money. 2 Sound. Rep. by Wms. 210. a. note. If, however, it does not appear by the plaintiff’s own showing, that he cannot have an action alone for some of the several things demanded, it is obvious that the defendant must make it appear by averment, on a plea in abatement; and on its being found true, the writ is abated as to that part of it which respects those particular things, and the action proceeds as to the residue. Nor is this principle confined to cases where the declaration contains more than one count, but it is equally *417 applicable to one count alone, where the cause of action set forth in that count is in its nature divisible. Hence we find in the first volume of Wentv.orWs Plead, p. 47. a precedent drawn by Mr. Burrougk, a very eminent special pleader, of a plea in abatement to part of a count in assumpsit, that is, as to a specified portion of the sum of money demanded in that count, that the promise as to such portion was made by the defendant, jointly with another person not sued. As little difficulty would there be in a plea in abatement in an action for a tort, for the omission of the necessary plaintiffs. Vin. Abr. tit. Abatement. S. a. 1, 2, 3, 4, 5.

The cause of action stated in the declaration, in the case before us, is clearly in its nature divisible, the time during which the injury is alleged to have been committed being separable ; and if, as to any particular portion of that time, any legal exception exists in regard to the mode of bringing the action, there seems to be no objection to the defendant’s taking advantage of it, by plea in abatement, nor any difficulty in that course. If this be so, the ground on which the defendant claims that he should have had the advantage of it on the trial, in the manner attempted, fails ; since he should have pleaded the non-joinder of Smith in abatement, as would be required in the ordinary case of an omission to join the necessary plaintiffs.

If, however, it were not competent for the defendant to avail himself, by a plea in abatement, of the non-joinder of all the joint owners as to that portion of the time when the plaintiff was not solely in possession, we should not think ourselves called on, in the exercise of a just discretion, to grant a new trial, under the circumstances of the present case. The reason why it is held to be necessary to join all the joint tenants or tenants in common, in actions of this description, is, that the defendant may not be harassed, by the several joint owners, with a multiplicity of suits for the same cause. Applying the reason of that rule to this case, it is obvious, that the defendant has suffered no injury, by the course taken on the trial, where only the plaintiff’s proportion of the damages sustained, was awarded by the jury. If it were true, as claimed by the defendant, that during a portion of the time when the injury was committed, the plaintiff was a joint owner or occupier of the premises with Smith, the defendant would *418 be liable to the same number of suits for the injury complained of, whether the plaintiff is, or is not, permitted, in the present case, to recover his proportion of jhe damages for the time when he was such joint owner or occupant. Two suits, in either case, and two only, would be necessary, in order to do complete justice. If the plaintiff recover, in this case, his damages, not only while he occupied alone, but also while he occupied jointly with Smith, an action by the latter, in addition to the present one, would be necessary to enable him to recover his proportion of the damages; and if the plaintiff does not here recover his damages for both periods, another suit by him and Smith would be requisite, in order to recover the damages sustained by them jointly. As, therefore, the number of suits against the defendant cannot, be increased, by the course adopted by the court below, we do not deem it a sufficient ground for a new trial.

The defendant claimed on the trial, that it was necessary for the plaintiff to prove a request from her to the defendant to reduce the height of the dam in question. This point, however, has not been pressed before us, nor has any authority in support of it been adduced. This case clearly does not fall within the principle established in Johnson v. Lewis, 13 Conn. R. 303. where the darn causing the obstruction complained of, was erected, not by the defendant, but by his grantor. In the present case, It was erected and continued, by the defendant himself, who therefore was the originator of the injury.

We think, that the defendant has no reason to complain of the manner in which the question, as to the effect on the water of the temporary and main dams, was submitted to the jury. The question made was, whether the discharge of the water through an aperture in the main dam. while the defendant was erecting the West part thereof, so that, during that time, it did not flow over, or rise to the height of, the East side of the dam. constituted such a cessation or interruption of the defendant’s use or enjoyment as prevented him from connecting that time with the time during which the water was actually raised to the height of the dam, for the purpose of making out the requisite period of time in order to presume a grant to the defendant to maintain the water to the height of the dam. The charge of the court below gave *419 the defendant the full benefit of all the time during which the water was raised continuedly to the height of the main dam, by both that and the temporary dam, but not of the time during which the water was not raised to that height before the main dam was finished. With respect to that portion of time during which the water was kept up only by the temporary dam, we think that the charge was over-favourable to the defendant. That dam was put up only for a limited and short time, and merely for a particular and specific purpose other than the permanent raising of the water, namely, to aid in the construction of another and different structure, the permanent or main dam, which was designed to be perpetual; and not as a means of enjoying or appropriating the water for any of the purposes for which the permanent dam was intended. It being confessedly temporary in its character and object, it did not constitute an assertion of a permanent right to raise the water; and to give it the effect of laying the foundation of a claim to the permanent enjoyment ofit, would be to pervert it from the real purpose for which it was erected. If the purpose for which it was built had been in dispute, a question proper to be submitted to the jury might have been presented as to its effect: such however was not the case. The time during which the water was kept raised, by the temporary dam only, should, therefore, be laid out of the question, and the effect of the main dam alone be considered. After that dam, which was designed as a permanent structure, had been completed, occasional and ordinary interruptions of the use of the water, such, for instance, as might be necessary for the repairing of the dam, or clearing out the pond, would not prevent the enjoyment from being continuous so as to deprive the defendant of the benefit of the time during which such hindrances should occur, or of a claim of title by prescription. But while the dam is in the course of being erected, and before it has so far advanced as to form a permanent and effectual barrier to the water, it would be going too far to say, that it should operate to lay the foundation of a claim, as though it actually was completed, and had the effect of setting back the stream. Until it is so far completed as to answer the purpose for which it was intended, that of permanently raising the water, it cannot be said properly, that any permanent use or enjoyment of the water has *420 commenced; and until then, the defendant does not begin to . . , , , , . , . , . a right by prescription. And a title of this descrip-tjon OUght to be made out clearly, and not by construction.

The superior court is therefore advised, that a new trial should not be granted.

In this opinion the other Judges concurred, except Church, J., who was not present.

New trial not to be granted.