CHAPTER LXXIV.

DAMAGES IN ACTIONS AFFECTING THE TITLE TO OR POSSESSION OF LAND.

§ 2157. Ejectment-Trespass to try title-Generally.— Only nominal damages should be given in ejectment where plaintiff fails to prove any damages. And only such damages can, at the most, be given where he is not entitled to possession.2 If the defendants have promised to vacate on a day certain but withhold possession, the proper remedy to recover damages is declared to be an action on the case. A judgment in ejectment is, however, held to be conclusive as to mesne profits between the parties from the day of issuing the writ. And it is decided that a suit for rents, accruing before a judgment in an action in the nature of ejectment, cannot be maintained, even though only possession of the premises and nominal damages were recovered. But it is also determined that the plaintiff in ejectment is not prevented from bringing an action in trespass for mesne profits against certain defendants because of the dismissal of the ejectment suit as to them." And it has been held that damages for mesne profits and for trespasses to the land, during the same period, can be recovered in ejectment, so that the judgment precludes sustaining an action quare clausum fregit thereafter for the same trespasses. Again, although the allowance of mesne profits ordinarily rests upon the recovery of the land, yet trespass may be maintained for the wrongful entry and damages be had therefor, even though the disseisor has abandoned or surrendered the premises and the owner is in possession. If the value of the land is in controversy in ejectment, its market value and not its value to defendant for

a particular purpose, is the test upon an issue as to its value." Nor is evidence of what plaintiff gave for the land material or pertinent upon the question of damages in an action of trespass to try title.10 In case expenses of litigation are incurred by defendant in quieting his title, as against third persons, they cannot be allowed him as a lien on the land in case of recovery by plaintiff in an action of trespass to try title."

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§ 2158. Wrongful entry-Wrongful detention-Forcible entry and detainer."—Ordinarily the measure of damages for unlawful detainer of land is held to be the rental value of the premises, but if the unlawful detention has impaired the rental value for the current year, by preventing the owner from putting in crops in land suitable only for that purpose, such fact constitutes a factor in the assessment of damages. But under the North Dakota code, damages or rent must be claimed in an action of forcible entry and detainer, otherwise the right of possession only will be the question litigated, and no counterclaims can be interposed except as a set-off to such claim of damages, rents or profits." It is decided, however, that the reasonable value of real estate, which value may be based upon its peculiar location, or other circumstances or conditions affecting the same, constitutes the measure of damages for its detention. And not only damages for the wrongful entry can be recovered but also other damages actually sustained by reason of the tortious or wrongful acts of the trespasser done at the time; 16 and certain statutes allow double or treble damages for unlawfully and forcibly detaining premises, or for forcible entry and detainer.18 So twice the value of the monthly

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9 Acme Brewing Co. v. Central R. & Bkg. Co., 115 Ga. 494; 42 S. E. 8. 10 Love v. Powell, 5 Ala. 58. 11 Gordon v. Hall (Tex. Civ. App. 1902), 69 S. W. 219.

12 See secs. 2160-2180, herein, as to mesne profits, rents, etc., and improvements.

18 Case v. Hall (Ind. Ty.), 46 S. W. 180.

14 Vidger v. Nolin, 10 N. Dak. 353; 87 N. W. 593; Rev. Codes, sec, 6677,

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17

Noyes v. French Lumbering Co. (Minn. 1900), 83 N. W. 385.

16 Moore v. Baylies, 38 N. Y. St. R. 79; 10 N. Y. Supp. 62; Mosseller v. Deaver, 106 N. C. 494; 11 S. E. 529; 8 L. R. A. 537.

17 Hart v. Pratt, 19 Wash. 560; 53 Pac. 711. See sec. 95, herein.

18 Remminer v. Blasingame, 94 Cal. 139; 29 Pac. 857; Bach v. New, 23 App. Div. 548; 548 N. Y. Supp. 777; Kirchner v. New Home S. M. Co., 42

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rents and profits of the premises may be recovered for wrongful detention of leased premises after notice to vacate; 19 and three times the amount of rent due can be recovered in forcible detainer where the unlawful detainer is after default of rent. But damages are not recoverable for injury to credit, or for bodily pain," nor, it is decided, can damages sustained by a wrongful eviction be availed of as a counterclaim under the writ in forcible entry and detainer, but must be recovered in an action on the bond." Again, it is determined that the date of demand, and not the date of possession, determines the time from which damages may be recovered in an unlawful detainer.23 A tenant can also be charged with the clear rental value for the time he was in possession, so that where, pending a motion for a new trial, the tenant withholds possession, the demandant will be entitled to further damages. If, in an action for the possession of tenements, a bond is given for the payment of all rent, damages, etc., awarded, the rights thereunder are not waived by an agreement to allow judgment for possession.

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§ 2159. Trespass.-The question of damages in injuries to real property, discussed in the last preceding chapters, covers that of recovery in actions of trespass, so that only certain general principles relating to damages in trespass to land or in trespass where the possession or use and occupation of land is affected or involved will be considered here. The underlying principle governing the allowance of damages in such actions is to afford indemnity for the injury suffered, having in view all the circumstances of the case." And where one is in peace

N. Y. St. R. 907; 16 N. Y. Supp. 761; |
Eccles v. Union Pac. Coal Co., 15
Utah, 14; 48 Pac. 148. See sec. 95,
herein.

19 Hadley v. Bernero, 97 Mo. App. 314; 71 S. W. 431. Examine Evans v. Lytle, 19 Ky. L. Rep. 1137; 42 S. W. 1110.

20 Nolan v. Hentig, 138 Cal. 281; 71 Pac. 440, under Code Civ. Proc. secs. 735, 1174.

21 Anderson v. Taylor, 56 Cal. 131; 38 Am. Rep. 52.

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able occupation of the land, but has no title and is ousted therefrom, and is forcibly and unlawfully kept out of possession by a stranger to the title, he may recover, in an action of trespass, the rental value of the land during such unlawful detention."7 Special damages must, however, be averred to be recovered, otherwise only such damages will be awarded as naturally and necessarily flow from the wrongful act, or such as must have been known by the wrongdoer would necessarily or inevitably result from the trespass. Again, a statutory right to recover damages for trespasses of a continuing nature down to the time of trial does not authorize bringing an action for a trespass committed between such time and the commencement of the first suit. Treble damages may also be allowed, under a statute providing therefor, unless the act was involuntary or casual, and a want of intention is not precluded, by a statute allowing treble damages, from being shown to preclude a recovery. But nominal damages should be awarded where the title is the main issue, no actual damages being shown. Damages in the nature of trespass cannot, however, be recovered as against parties occupying adversely, where the action is for use and occupation of land under a claimed tenancy.

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§ 2160. Mesne profits or rents and profits-Improvements-Rule of the common law, equity, and civil law. The rule as asserted in an early case in the supreme court of the United States is as follows: At the common law whoever takes and holds possession of land to which another has a better title, whether he is a bona fide or mala fide possessor, is liable to the true owner for all the rents and profits which be has received; but the disseisor, if he be a bona fide occupant, may recoup the value of the meliorations made by him against the claim for damages. Equity also allows an account of rents

27 Oklahoma City v. Hill, 6 Okl. 114; 50 Pac. 242.

31 Gardner v. Lovegren (Wash. 1902), 67 Pac. 615; Ballinger's Ann.

28 Rauma v. Bailey (Minn. 1900), Codes & St. secs. 5656, 5657. See 83 N. W. 191. secs. 95, 96, 1180-1211, herein.

29 Panchester v. Rochester & P. C. & I. Co., 204 Pa. 158; 53 Atl. 751. 30 Hart v. Doyle (Mich. 1901), 8 Det. L. N. 662; 87 N. W. 219, 139

32 Few v. Killer, 63 S. C. 154; 41 S. E. 85.

83 Biglow v. Biglow, 75 App. Div. 98; 77 N. Y. Supp. 716.

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