Perry v. Bailey , 94 Me. 50 ( 1900 )

Savage, J.

The plaintiff sues in trespass quare clausum for an injury to his wharf. He alleges that the defendants by their agent unloaded two hundred tons of paving stone upon the wharf without any license, permission or authority therefor, and that the wharf was broken down by the weight of the stone. For many years the wharf had been leased to S. C. Dyer & Co. Their lease expired during the first part of the year 1895, “at which time the lessees notified the plaintiff that they did not wish to renew the lease on the terms contained in the same, and from that time on, until the nineteenth day of August when the injury complained of occurred, S. C. Dyer & Co. were occupying the wharf under no arrangement as to the amount of rent.” The captain of the vessel containing the paving stone, through one Leighton, applied to Mr. Marrett, one of the firm of Dyer & Co., for permission to pile fifty tons of stone on the wharf in question, and said that he wanted the privilege of leaving the stone there for three or four days. Mr. Marrett told Leighton that he had no authority to allow the cargo to be piled on the wharf, and also that the firm of S. C. Dyer & Co. had a vessel coming in a week or ten days, and the dock must be clear for her. The result of the interview was that Mr. Marrett told Leighton that “ if he would get the stone away so that they would not interfere with S. C. Dyer & Co. in any way, and would be sure not to have the vessel there to block their vessel when it arrived, so far as the firm of S. C. Dyer & Co. were concerned, he might pile them there:” No arrangement was made as to the amount of wharfage, and none has been paid or offered to be paid. The case shows that “after the expiration of the lease, no authority was given at any time to the firm of S. C. Dyer & Co. by the plaintiff to allow the using of the wharf for any purpose.”

Two hundred tons of stone were unloaded from defendants’ vessel onto the wharf, August 7, 8 and 9,1895, and on the nineteenth day of the same month, owing to the heavy weight of the stone, the side of the wharf, where the stone were piled, gave way and the stone of which the wharf was laid up were thrown into the dock.

For this injury, can the plaintiff maintain trespass quare clausum? We think not. Much of the argument of counsel has been directed to the question whether the wharf was public or private, but this question we do not deem it necessary to consider. For the purposes of this decision, we shall assume, as the plaintiff claims, that the wharf was a private one.

The wharf had been leased to Dyer & Co. After the expiration of the term of the lease, they held over. They continued in possession. Under our statute, and under the circumstances of this case, so far as developed, we think they held as tenants at will, unless by the peculiar stipulations in the lease they had acquired superior rights. Kendall v. Moore, 30 Maine, 327; Franklin Land, etc., Co. v. Card, 84 Maine, 528. The lease is not made a part of the case, and we know nothing of its contents. Therefore, it is to be presumed that they held simply as tenants at will, and with the usual rights of tenants at will. Dyer & Co. not only were in lawful possession, but inasmuch as no restrictions are shown, it must be presumed that they had a right to make such use of the wharf as is ordinarily incident to a wharf. Though they may have used it as a private wharf, they were not debarred from permitting vessels other than their own to unload there, for such is the purpose for which wharves are usually built. As tenants, they could use it for any lawful purpose. Their permission to unload stone from defendants’ vessel was lawful, and the defendants were thereby authorized to unload stone on the wharf. They committed no acts of trespass so far as S. C. Dyer & Co. were concerned. But for all the purposes of the action of trespass, Dyer & Co., the tenants in possession, are to be considered as the owners, and a license so far as they “were concerned” was sufficient authority for unloading the vessel. Taylor on Landlord & Tenant, § 766.

Now, the well known rule is that the owner himself cannot maintain trespass quare clausum unless be was in possession at the time of the alleged trespass, for the gist of the action is the injury to the possessory right. Chadbourne v. Straw, 22 Maine, 450; Jones v. Leeman, 69 Maine, 489; Kimball v. Hilton, 92 Maine, 214. Therefore, the landlord out of possession cannot maintain trespass, if the tenant is in possession. Bartlett v. Perkins, 18 Maine, 87. A qualification of this rule permits a landlord, while a tenant is in possession, to maintain trespass for injuries to the freehold. Davis v. Nash, 32 Maine, 411; Lawry v. Lawry, 88 Maine, 482. But this remedy extends only to acts of trespass. We have said that the entry in this case was by lawful authority. It follows that there was no trespass. Dingley v. Buffum, 57 Maine, 379. If it be said that the defendants in any event were authorized to pile only fifty tons of stone upon the wharf, and that they occasioned the damage by exceeding their authority, the answer is that an abuse of authority to enter upon land, given by a party, does not render a man a trespasser. Hunnewell v. Hobart, 42 Maine, 565; Dingley v. Buffum, supra.

The court is, therefore, of the opinion that the ruling of the presiding judge below, that, upon the facts in the case, the defendants were trespassers, was erroneous. _ .

Exceptions sustained.