Heroux v. Katt

68 A.2d 25 (1949)

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Nature of the Case

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Facts

Heroux (P) leased land from Follett for a period of five years with a privilege of renewal for another five years. At the time the lease was executed, Katt (D) was in possession of 451 square feet of the land wherein they had built a building on their land that extended onto the leased land. D was aware that the building extended over onto the leased land. Neither Follett nor P were aware that D's building encroached upon the land at the time the lease was signed. P sued in trespass and ejectment. The trial court directed the verdict to P and D appealed from a denial of its motion for a directed verdict. D makes several contentions on appeal: (1) Trespass and ejectment is not a proper action to remove encroachment by a building owned and occupied by defendants on the 'locus in quo' because the only proper action was in equity to enjoin the continuing trespass or nuisance and because an execution to the sheriff would be ineffective to deliver possession in an action at law. (2) The plaintiff is not a proper party to bring trespass and ejectment because the ejector at the commencement of the action must possess the fee to the reversionary interest of the locus in quo. (3) Assuming that the 'party in possession' can properly bring such an action, the testimony shows that P and another as partners were conducting an automobile business on the premises; that they were therefore in actual possession; and that they should have been the parties plaintiff.