#### WILLIAM HAYS v. JOHN O. ASKEW.

Where the owner of land conveyed il, reserving a right of way therein through a certain avenue, and afterwards built a house in said avenue,, it was Held that an action of trespass was the proper remedy for the grantee.

Where a person built a house on the land of another, so near the house of the owner as to darken it, and otherwise greatly impair its value, it was Held in an action of trespass, that the jury were confined to the actual pecuniary injury, and could not give vindictive or exemplary damages.

This was an action of trespass, quake clausum eregit, tried before Manly, J., at Fall Term, 1859, of Hertford Superior Court.

This action was brought for putting up a house on the plaintiff’s land. , It appeared that the laud trespassed upon, had been conveyed, a few years before by defendant, to plaintiff, that in the conveyance there was a reservation by the defendant of a right of way along an avenue through the land; that plaintiff purchased it for a business site;. that he erected a store-house on it, fronting the avenue and near to it, and was then carrying on a mercantile business, when the defendant becoming unfriendly, put up a ware-house, for his own use, in the avenue, immediately in front of the store, the corner of the house being about seven feet from the plaintiff’s store, and extending along its side somewhat obliquely. This ware-house was put up by defendant against the remonstrances of plaintiff, be being present, and endeavoring, ineffectually to prevent it. The ware-house was so close to the store as to darken it, and make it liable to smoke when the wind was from a eertain quarter, and it was impossible to turn a cart before ihe store-house, fronting the avenue, thus greatly impairing its utility and agreeableness as a place of business. The avenue, above mentioned, had been laid out by the person from whom defend ant purchased, and was used by him, as a passage from his dwelling to the public road, and had been so used by the defendant; it bad also been used by the public for the space of twenty-five years or mare, but no ju*273risdiction over it had, at any time, been assumed by the County Court, and it continued to be called after the owner of the land, (Askew’s avenue.)

Two points were made: first, whether the action of trespass would lie; and secondly, whether vindictive or exemplary damages could be given.

Upon a finding by the jury that this -was a way laid off by the person under whom the defendant claimed, for his private use, and subsequently used by all who wished the permission from said former owner or from defendant, with no claim, at any time, of a right of way by the public, the Court held that it was a private way, and the dominion and right of soil, continuing in the owners, (the Askews) passed by the conveyance to Ilays, and gave him such a right to the locus in quo, as to make the action- of trespass the- proper remedy-

The Court, furthermore thought that if the trespass was committed forcibly, in the plaintiff’s presence, and under circumstances of insult and oppression, (that is to say if the jury found it so,) they were at liberty to go beyond the simple pecuniary injury, and give exemplary or vindictive damages. — • Under instructions accordingly, the jury found for plaintiff. Judgment. Appeal by defendant.

Barnes, for plaintiff.

Winston, Jr., for defendant.

Pearson, C. J.

We concur with his Honor that trespass, quare clausum fregit, is the proper form of action. But we do not think the evidence makes a case where the jury are at liberty give vindictive damages. We can see no evidence of personal indignity offered to the plaintiff or of “insult or oppression,” other than such as ordinarily occurs when two men differ as to their right to a piece of land, and one, in the confident belief that itis his property, takes possession in the presence of the other, and contrary to his remonstrance, and is determined to assert his right of property at the risk of the *274consequences. That the defendant had some ground to believe that the land belonged to him, is apparent from the fact, that the question of title depended upon the construction of a deed which was decided in his favor in the Court below, although otherwise held in this Court, on the ground, that the reservation gave to the defendant only a right of way, as distinguished from a right of property in the soil; Hays v. Askew, 5 Jones’ Rep. 63.

And that he actually believed the land belonged to him, is apparent from the fact that he built a house on it, which, if it turned out that the land belonged to the plaintiff, would pass with it, so that he might use or otherwise dispose of it, without paying any thing for it.

As the defendant, after his entry, retained the possession of the house, and the land on which it stood, the plaintiff was only entitled to recover for the original entry, and could not allege a trespass with a continuendo from day to day, until he had regained the possession, so as to' have the benefit of the jus postlimininii. There is error.

Per Curiam,

Judgment reversed and a veni/re de novo.