Lemuel Cushing et ux. versus Lucy Adams, 18 Pick. 110

Wilde J. delivered the opinion of the Court. On the trial of this case in the Court of Common Pleas, several exceptions were taken to the instructions of the Chief Justice to the jury, none of which appear to us to be well founded. Upon the evidence in the case the jury were instructed, that f they were satisfied that the plaintiffs owned the estate mentioned in the - declaration, and that a right of passing was appurtenant to the estate, and that the defendant had disturbed them in the use of it, the plaintiffs would have a right to recover such damages as they had sustained.

It is objected to this part of the instructions, that no damage could have been sustained by the plaintiffs, but that if there was any injury, it was wholly done to the tenant. But we cannot know judicially that the plaintiffs have not been damnified. On the contrary, we are bound to believe that they have been ; for the jury have so found ; and whether they were justified in so finding by the evidence, is a question not open on these exceptions.

The obstruction might have been prejudicial to the plaintiffs; for they had a right to enter any time to terminate the lease at will, or to make repairs, and might have been prevented from so entering by the obstructions, and might thus be induced to continue a disadvantageous lease, or to suffer the tenements to be injured for the want of seasonable repairs. Another exception to this part of the instructions is, that the plaintiffs cannot recover for any damages, except for damages done to the wife’s reversionary interest, and that the jury should have been so instructed.

But the court was not bound to give any such instruction, if the distinction were well founded ; for it is no good ground of exception to the charge of the court to the jury, that some material point has been omitted, unless on request the court should refuse to charge as requested. We are, however, of opinion that the distinction relied on, is not well founded. This case comes within that class of cases in which, for an injury done to the wife’s real estate during coverture, the husband may join the wife, or sue alone.

Thus, for trespass on the wife’s land, the husband has the election to sue alone, or join the wife. So if the wife has a right to all the lop of certain trees, and the owner cuts them down, the husband and wife may join. Tregmiell v. Reeve, Cro. Car. 437. So if the wife’s close has a prescriptive right of way through the close of another, and the owner of the land erects a building car transí erso vim, the husband and wife may join in an action to recover damages for the stoppage during coverture. Bac. Abi Bar. & Feme, K.

The instruction in respect to the license is clearly correct , for although the abuse of a license in fact will not make a person a trespasser ab initia, yet undoubtedly an action of the case to recover damages for such an injury, may be well maintained. In regard to the objection, that the plaintiffs were not in pas session during the continuance of the obstruction, that is sufficiently answered by the cases of Starr v. Jackson, 11 Mass. R. 519, and Sumner v. Tileston, 7 Pick. 201, wherein it was decided, that the possession of the tenant at will is the possession of the landlord.

Some objections have been made to the declaration ; but we think they cannot be maintained. It is said there is no averment in the declaration, that the plaintiffs were in possession. The averment is, that the plaintiffs were seised in their demesne as of fee, of the premises ; and this virtually includes an averment of occupation or possession. Bullard v. Harrison, 4 Maule, & Selw. 392.

The objection, that there is no averment in the declaration, that the injury complained of was done to the reversionary interest of the wife, would be a fatal objection even after verdict, if this were an action for an injury done to the reversion ; but as it is an action for an immediate injury to the plaintiffs’ possessory interest, this objection is not applicable. Judgment of Court of Common Pleas affirmed.