Smith v. Wunderlich

Citations

• 70 Ill. 426

Syllabus

<p>1. Trespass quare clausum freg-it. To maintain trespass to real property, the plaintiff must have the actual possession, by himself or his servant, at the time the injury is committed, except only where he is the owner, and the land is unoccupied, or there is no adverse possession.</p> <p>3. Measure of damages—in trespass to realty. The gist of this action is, the injury done to the possession, and if the trespass amounts to an ouster of the plaintiff, he can, in an action brought before re-entry, recover damages only for the trespass itself, or first entry.</p> <p>3. A disseizee may maintain trespass against the disseizor for the disseizin itself, because he was then in possession, but not for an injury after the disseizin, until he gains possession by re-entiy, and then he can have his action for an intermediate damage.</p> <p>4. But, if the disseizee gains possession by re-entry after the disseizin and before suit, he may recover damages for the mesne profits as well as for the first entry.</p> <p>5. Where a tenant is ousted by his landlord before the expiration of his term, and, without any re-entry, he brings an action of trespass, he can recover damages for the ouster itself, and all the necessary and natural consequences thereof, but not for the value of his unexpired term, or for the mesne profits thereof.</p> <p>6. Same—exemplary damages. In an action of trespass to real estate, if the circumstances of aggravation render it impossible to apply any fixed rule of law, the jury may give exemplary damages, to be graduated with reference to the motives which actuated the defendant, and the manner in which the act complained of was committed.</p> <p>7. The pecuniary condition of the defendant may be considered, not for the purpose of showing how much he is able to pay, but that the jury may determine how much his rank and influence in society, and the extent of the injury, are increased thereby, and it is error to instruct a jury that, in fixing the amount of