Ott v. Grice, 15 N.C. 477, 4 Dev. 477 (1834)

June 1834 · Supreme Court of North Carolina

15 N.C. 477, 4 Dev. 477

Jane M. Ott v James M. Grice, et. al.

When a house under lease is pulled down by a trespasser, the owner can maintain case for the injury done to the freehold, and is in law entitled to recover damages, the amount of which depends upon the circumstances of the case.

Case — for an injury done to the plaintiffs reversionary estate in a house and lot in Elizabeth City.

Piea — not guilty,

On the trial before Martin Judge, at Pasquotank, on the last circuit, the case, was that tiie plaintiff had title to the premises, which were leased out by the month — that the house was old, hut not dangerous to persons passing by it, and that the defendants had in tbe night pulled down a shed attached to it, injured the chimney, and torn off some of the weather-boards. The defendants attempted to show that the house was worthless, and succeeded in proving that the rent for the ground alone, would he worth more than that which the plaintiff obtained for both the house and ground. But it appeared very clearly that the house would have stood for two years without repair, and that during that time the plaintiff.might have leased it for two dollars a month.

His Honor informed the jury that if the defendants had done a permanent injury to the freehold, which rendered it less valuable to the plaintiff they ought to find for her — hut if no such injury had been done, they ought to find for the defendants.

The jury returned a verdict for the defendants, and the plaintiff appealed.

Iredell for the plaintiff.

Kinney for the defendants.

DaNiei, Judge.

After stating the evidence and charge as above, proceeded: — The law authorises the reversioner to maintain an action on the case, and to recover damages for an injury done, if the injury was sufficient to prejudice his interest in the reversionary estate, or for any act injurious to the reversion, (1 Chit. Plead. 51 142.) The charge “ that if there had been a permanent injury to the freehold,” explained by saying “an injury which rendered it less valuable to the owner of the freehold, the plaintiff might recover,” was a charge not in the main erroneous. But when considered in reference to the testimony before the jury, and the points contested by the parties, we think it erroneous as tending to mislead the jury. The plaintiff was entitled to recover if her .reversionary interest liad sustained any injury. If the evidence given on the trial was true, even that evidence only which the witness, for the defendants gave, still the plaintiff was in law entitled to recover. We think that the plaintiff, (the reversioner,) had a right to have the house and lot of land, in such a plight and condition as she thought proper or fit to put them in.herself, or caused to. b.e put 01. p]ace(i ]u by others, provided that neither the public ri01. (dher persons were injured thereby. And we think that it is no answer to an action, brought by a rever-sioner for an injury to the inheritance,for the defendant to say, “to be sure I pulled down your house, I cut down your grove, or I destroyed your forest of timber, but your lands will rent for as much or more now, than they did before the act was done.” If a tenantable house containing a tenant rendering rent, is torn down or dilapidated, so as to render it untenantable, this act, in law, is such an injury to the reversionary estate, as to enable the owner thereof to maintain an action on the case, to recover damages. Wo think the Judge should have told thejury, that if they believed the evidence, then the plaintiff was, in law, entitled to recover some damages, and that the only thing for them thereafter to do, would be to assess the amount. Upon the whole case, we think the judgment must be reversed, and anew trial granted.

Per Curiam. — Judgment Reversed,