Gage v. Gage , 66 N.H. 282 ( 1890 )

The difficulty sometimes met in drawing the line between declaring and making the law (Broom Com. 5) is not encountered here. Ever since estates in common have been known to the law, it has been the unquestioned legal right of a tenant in common — one of his essential proprietary rights — to occupy, use, and enjoy the common property without liability to account to his co-tenants, so long as he does not prevent them from exercising the same right. The earliest reported judicial declaration of the doctrine to which attention has been called is found in the Year Book, 17 E. 2, 552 (A. D. 1324), and the latest in the unanimous judgment of this court in Berry v. Whidden, 62 N.H. 473 (A. D. 1883). If in Berry v. Whidden the same result might have been reached on other grounds, its authority on the point decided is not thereby diminished. Webster v. Calef, 47 N.H. 289. The doctrine is the logical and necessary consequence of the nature of the estate. It is the law, not of remedy, but of right. In respect to occupation and the right to occupy, there is no difference between tenants in common and joint-tenants. Each of two co-tenants is equally entitled to the possession and use as well of every parcel as of the whole. I occupying, each exercises his own and not his companion's right. Neither can lawfully exclude the other. No more can either, by his voluntary omission to exercise his own right of occupation, destroy or modify the other's right. Lit, ss. 288, 292, 323; 2 Bl. Com. 182, 191, 192; 4 Kent 359, 367-369; Daniel v. Camplin, 7 M. G. 167, 170, 172 n.; Murray v. Hall, 7 C. B. 441, 454, 455 n.; Wood v. Phillips, 43 N.Y. 152; Calhoun v. Curtis, 4 Met. 413.

For the exercise of his legal rights upon land of which he is lawfully possessed in his own right, no one is in law or in equity accountable to another in any form of procedure. No promise to account can be implied (Sceva v. True, 53 N.H. 627), and any consequential loss must be borne by him on whom it falls. Sedg. Dam. 29-32.

The common law recognizes no right for the violation of which it does not provide a remedy. If it gives no remedy, it gives no right. 3 Bl. Com. 123; Broom Leg. Max. 193; Ashby v. White, 2 Ld. Raym. 938, 953; Rich v. Flanders, 39 N.H. 304, 351. In some cases it gives a remedy without legal process. 3 Bl. Com. 18-21; Co. Lit. 200 a. To take away all remedy for its infringement is, in legal effect, a repeal of the law. Squire v. Grevett, 2 Ld. Raym. 961, 964; 1 Salk. 74; Willard v. Harvey, 24 N.H. 344, 353; Rich v. Flanders, 39 N.H. 304, 347, 351, 353, 374, 379, 385, 390. To give a remedy where none by law exists, is to enact a law creating rights. In each case alike it is legislation.

Littleton (s. 323) and Coke (Co. Lit. 197, 200) state the distinction between an indivisible chattel of which the possession or use is of necessity exclusive, and apportionable lands which may be possessed and enjoyed in common. The law governing the rights and remedies of joint owners of such a chattel has no application to the present question. It is irrelevant for the purpose of argument or illustration, until it is shown that the possessor of the chattel is bound by law to account for its use to his co-tenant, who is free to take it into his own possession whenever he will. Prentice v. Ladd, 12 Conn. 331, 333; Southworth v. Smith,27 Conn. 355, 359; Brown v. Wellington, 106 Mass. 318, 319.

The plaintiff's position, that the exemption of the tenant occupying common lands from liability to account for the use of the property to his unexcluded co-tenants was due to the want of remedial process by which they could enforce their rights, is without foundation. The reverse is true. The law provided no remedy, because there was no violation of right. It might as well be argued that the wife's common-law disabilities, and the husband's title to her property, were due to the lack of suitable process for the vindication of her rights, or that, on a recovery of land, the defendant's inability to obtain compensation for improvements made by him while in peaceable possession under a supposed legal title (G. L., c. 232, ss. 6-8) was owing, not to the law of property, but to the neglect of the judges to invent a method of procedure by which his claim for betterments could be enforced. If the position is sustained, the unwritten laws of property are few that judges who happen to think them harsh or inequitable may not repeal under the guise of remedial invention. Rich v. Flanders,39 N.H. 304, 390.

Whether it would be wise in the legislature to repeal the law and make a tenant's "own omission to occupy the joint estate a ground of action against his co-tenant" (62 N.H. 476, 6 Gray 120), is a question upon which opinions may perhaps reasonably differ. It has been, and well may be, doubted whether justice would be promoted by giving a tenant, who voluntarily declines to occupy the common estate, the power to prevent his co-tenants from occupying it except upon terms of paying him rent. Henderson v. Eason, 17 Q. B. 701, 710-716, 720, 721; McMahon v. Burchell, 2 Ph. Ch. 127, 134; Sargent v. Parsons, 12 Mass. 149, 153. The common law of tenancy in common has been modified by legislation in several particulars (3 Bac. Abr. 699-704, 708, G. L., cc. 141, 220, 247), but the law-makers acquainted for six centuries with its practical operation have seen no cause for depriving co-tenants of the right in question.

An excluded tenant in common may recover of his co-tenant the possession in ejectment (Lit., ss. 322, 323, 1 Chit. Pl. 79, 191) and the mesne profits in a subsequent action (Goodtitle v. Tombs, 3 Wils. 118, 1 Chit. Pl. 79, 195, Runn. Eject. 443, Stearns R. A. 404), or he may maintain trespass for his damages. Wood v. Griffin,46 N.H. 230. The rental value during the time of his exclusion (he may recover more, 3 Wils. 120) indemnifies him for the past, and partition will protect him in the future. If not excluded he needs no remedy, because no right is infringed.

Equity follows, and is bound by the law. It can neither give to the plaintiff, nor take from the defendant, a legal right. Against established law it can afford no relief. 3 Bl. Com. 429-437; 1 Sto. Eq. Jur., ss. 11-20. "In no case does it contradict or overturn the grounds or principles" of the law. "That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution intrusted with." Cowper v. Cowper, 2 P. Wms. 720, 753, 754. It cannot compel a party to account who is declared by law to be under no obligation to account. Hence, though having full jurisdiction (1 Sto. Eq. Jur., ss. 441, 466), it has never yet required, or attempted to require, an occupying tenant in common to account for the use of the property to a co-tenant who may occupy whenever he will.

Courts of justice cannot lawfully make, or repeal, the law. The power is denied to them by the common law (Co. Lit. 115 b, 282 b, 379 b, 1 Bl. Com. 70, 71, 142, 269, and Christian's notes 3 and 4 at p. 70, 1 Kent 476, Brydges v. Chandos, 2 Ves. Jr. 417, 426, Entick v. Carrington, 19 How. St. Tr. 1029, Mirehouse v. Rennell, 1 Cl. Fin. 527, 607, Egerton v. Brownlow, 4 H. L. Ca. 1, 123, Attorney-General v. Dean of Windsor, 8 H. L. Ca. 369, 391-393, Beamish v. Beamish, 9 H. L. Ca. 274, 337-339, 349, Freeman v. Tranah, 12 C. B. 406, 411-415, Osborn v. Bank of U.S., 9 Wheat. 738, 866, Bellows v. Parsons, 13 N.H. 256, 261-263), and for the soundest reasons. "It may be lamented that the law upon any subject is in such a state as to induce eminent judges and writers to express their disapprobation of it, and their regret that they are bound to give it effect; but it would be still more to be lamented if judges should be found who thought themselves at liberty to declare the law according to their own fancies of what it ought to be. All stability would be lost, and the law, which should be administered upon clear and fixed principles, would be involved in uncertainty and confusion." Bullin v. Fletcher, 1 Keen 369, 379. "If law well established may be annulled by opinion, a foundation is laid for the most restless instability. The decisions of one court may be overruled by another court, and those of the latter will have only a transient efficacy until some future court, dissatisfied with them, shall establish new principles in their place. No system of inflexible adherence to established law can be as pernicious as such ceaseless and interminable fluctuations." Palmer v. Mead, 7 Conn. 149, 157. "It is no part of my duty to make new law simply because I think the old law unreasonable: that is the province of the legislature. When I find a point decided, however I may lament the result, I think I am bound to follow the decision and to construe it fairly, and not seek to evade it or fritter it away by introducing distinctions only invented for the purpose of pronouncing another decision which in my opinion would be more in conformity with reason." Jessel, M. R., in Bellairs v. Bellairs, L. R. 18 Eq. 510, 513. If it were otherwise at common law, the authority is denied to us by the express terms of the constitution. The legislature cannot confer it upon us. State v. Hayes, 61 N.H. 264. "All the laws which have heretofore been adopted, used, and approved in the province, colony, and state of New Hampshire, and usually practised on in the courts of law, shall remain and be in force until altered or repealed by the legislature." Const., art. 90.

A sufficient reason, if there were no other, for leaving the repeal of the common law of property rights to the legislature is, that its enactments look to the future without disturbing the past; they have, and under the constitution can have, no retrospective operation (Bill of Rights, art. 23), while judicial lawmaking is necessarily retroactive, not only in the particular cause adjudged, but in all other similar and subsisting causes. By the established law of the land, the defendant, during all the time he occupied the premises, did the plaintiff no wrong and incurred to him no liability. He exercised his legal right, and left the plaintiff at liberty to exercise his equal right. Webster v. Calef,47 N.H. 289; Berry v. Whidden, 62 N.H. 473. Whatever the plaintiff lost, he lost through no act of the defendant, but by his own laches. At the date of his writ he had no ground of complaint, in equity or at law. A judgment in his favor will impose on the defendant an obligation which prior to its rendition did not exist. Had the legislature at its last session enacted a statute having the same effect on the rights of the parties, it would be the duty of the court to pronounce it unconstitutional and void. Woart v. Winnick, 3 N.H. 473, 477; Towle v. Railroad, 18 N.H. 547, 551. A judgment for the plaintiff will be as "highly injurious, oppressive, and unjust" as the statute would be; it will be as obnoxious to the spirit, as the statute would be to the letter, of the bill of rights. Cahoon v. Coe, 52 N.H. 518,526.

The doctrine of the supreme court of the United States, and of this court, that contracts valid under the settled judicial or practical construction of the constitution and laws when they are made, cannot be invalidated by a subsequent judgment of the court that the construction was wrong (Douglass v. County of Pike, 101 U.S. 677, 686, 687, and cases cited, Opinion of the Justices, 58 N.H. 623, Willoughby v. Holderness,62 N.H. 227, 228), does not rest upon the provision of the federal constitution that no state shall pass any "law impairing the obligation of contracts" (New Orleans Waterworks v. Sugar Co., 125 U.S. 18, 30-38, and cases cited), but on the principles of the common law — "the soundest principles of justice." Ohio Life Ins. Trust Co. v. Debolt, 16 How. 416, 431. "To hold otherwise would be as unjust as to hold that rights acquired under a statute may be lost by its repeal." Gelpcke v. Dubuque, 1 Wall. 175, 206. Contractual rights are no more sacred and no more entitled to protection than other rights. To create a debt or duty where none by law exists is as unjust as to make a valid contract invalid. It is immaterial to the sufferers by what agency the result is wrought: if effected by judicial action, it affords them no relief to be informed that from a like injury at the hands of the legislature they are protected by the constitution, or that the established law, on the faith of which they acted, was bad law. The defendant is entitled to judgment.

SMITH, J., concurred in this opinion.