Upon the argument of this appeal it was agreed between the counsel of the appellants and the appel-lee that the “case” should be amended so as to show that the appellants duly excepted to the construction put by his Honor on the lease and deed set out in the record, that exception having been omitted by an oversight in making-up the statement of the case on appeal.
An examination of the plaintiff’s complaint discloses the fact that he was not seeking by this action to enforce his alleged right to remove from the huid of the defendants a *527house which he had erected thereon under a contract which secured to him that privilege and damages because that had been denied him. In the statement of his first cause of action he distinctly avers that he is the owner in fee of the land, and demands possession as such owner. In the statement of his second cause of action he declares that in the year 1891, while he was in the peaceful possession of the house the defendants unlawfully took possession of it and have since that time wrongfully withheld the possession thereof from him, therebjr causing him “to lose the use of said house and the property therein contained.” lie nowhere alleges a desire or right to remove the house, or that the defendants have refused to allow him to do so. It appears that the.se allegations were not sustained by the evidence produced on the trial. All went to show, as seems to have been conceded, that after January 1, 1891, neither the plaintiff nor his assignor’, Rufus Avery, the lessee, had any right to remain on the defendants’ land, or any right to come upon it except for the purpose of removing their property therefrom.
He alleged one cause of action, as it seems to us, and attempted to establish quite a different one. And of the cause of action which he thus sought to enforce at the trial a demand and refusal were an essential element. The defendants could not be held liable for damages in such a case unless they had prevented him from exercising his right. Damages could only arise out of a refusal to allow him to remove the house. Now, not only was there no allegation or proof of a demand and refusal, but there was on the part of the defendants a distinct averment of a notification to flic lessee to remove the house off of their land.
The pleadings and facts found do not support the judgment entered against the defendants. If the house is the plaintiff's, in the sense that he may take it away from the *528defendants’ land, it does not follow that he may recover damages of them. He must go a step further and prove that they refused him the privilege of removing it. And the damages recoverable would be, not the rental value of the house situated as it was on the defendants’ land, but the actual damage suffered by the plaintiff because lie was not allowed to remove it. There must bo a
New Trial.