Colton v. Onderdonk

Foote, C. The plaintiff instituted this action for the recovery of damages, which she claimed the defendant had caused to her dwelling-house while he was engaged in blasting rock in grading another lot adjoining that on which the plaintiff’s dwelling stood.

The cause being tried by a jury, their verdict was in favor of Mrs. Colton for $7,500; this was on the 19th of March, 1883. Afterward, on the 19th of Juné, 1883, a judgment thereon was rendered for the sum of $7,631.25, and interest from said date at seven per cent per annum, together with costs and disbursements in the sum of $464.45. From said judgment and an order refusing his motion for a new trial, the defendant appeals.

His first contention is, that the complaint showed no cause of action, because, as he claims, it is doubtful [157]whether the plaintiff claims to have been in possession of the damaged house, as devisee, under her husband’s will, or as executrix, and by the allegations of that pleading, that the decedent’s estate, not having been distributed, the executrix alone could sue in such an action, and not having done so, no recovery could legally be had. We do not think this proposition is successfully maintained.

The complaint, as we think, in its statements, conveys to the ordinary intellect that Mrs. Colton claimed damages from the defendant for injuries done to the dwelling-house, of which she was in possession as a sole devisee under her husband’s will, and the further fact that she was also the executrix of that will. There was a statement therein that the defendant had damaged the property of which she, Ellen M. Colton, in her own proper person, was in possession, which was the gist of the action, and no contradiction of that statement. Therefore the case of Dickinson v. Maguire, 9 Cal. 46, cited by the appellant', is not in point.

And if it was ambiguous or doubtful from the language of the pleading what it meant to convey, as to the capacity in which Mrs. Colton sued, that should have been '.taken advantage of by special demurrer, and such course not having been taken, the defect was waived. (Code Civ. Proc., sec. 434.)

At common law the right of action in such a case as this, trespass upon realty, was in the heir or devisee, in possession. (Pomeroy on Remedies, 2d ed., sec. 219; Waterman on Trespass, 979-980; Lyman v. Weber, 17 Vt. 489; Arbuchon v. Lory, 23 Mo. 99-100; Railroad Co. v. Knapp, 51 Tex. 576, 577.)