# Van Ness v. Pacard

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United States Supreme Court
27 U.S. 137
Van Ness v. Pacard
ERROR to the circuit court of the county of Washington, in the district of Columbia.
The plaintiffs in error instituted their action of trespass on the case, in the court below; to recover damages for the removal of certain buildings from a lot of ground in the city of Washington, the property of the plaintiffs; which had been leased to the defendant by the plaintiffs for a term of years, reserving a rent. The jury gave a verdict in favour of the defendant.
Upon the trial of this cause, the plaintiffs gave in evidence to the jury, an indenture of lease between them and the defendant, for a lot of ground in the city of Washington for a term of years, reserving a certain rent, with the privilege to purchase out the fee at a stipulated sum; and offered evidence to the jury to prove, that after the defendant had taken possession of the land described in the lease, he erected thereon a building, two stories high in front, with a cellar of stone or brick, and a shed of one story; and that the principal building, which had a brick chimney, rested upon this stone or brick foundation. That the defendant was a carpenter by trade, and resided in the house from the commencement of his lease to about the period of its expiration, and that, before the term had expired, he took down and removed the said house from off the premises.
The defendant gave evidence, that, upon obtaining the said lease, he erected the building with a view to carry on the business of a dairyman, and for the residence of his family and servants engaged in his said business; and that the cellar, in which was a spring, was made and used exclusively for a milk cellar; that in the upper part of the house were kept, and scalded, and washed, the utensils of his said business; and that that part was also occupied as a dwelling for his family; that he was also a carpenter, and had tools and two apprentices in the house, and a work-bench out of doors; and that he worked in said house at his trade of a carpenter; that the house was in a rough unfinished state, and made partly of old materials; and that he also erected on said lot a stable for his cows, of plank and timber, fixed upon posts fastened into the ground; and that the stable was pulled down and removed at the same time with the principal building.
Upon this evidence the counsel for the plaintiffs prayed the instructions of the court to the jury, that if they should believe the same to be true, the defendant was not justified in removing the house from the premises; and that he is liable in this action to the plaintiffs, for the value of the house; which instructions the court refused to give.
The defendant also offered evidence to prove, that a usage and custom existed in the city of Washington, which authorised a tenant to remove any building which he might erect upon leased premises; provided the same was removed before the expiration of the term.
Upon this evidence the counsel for the plaintiffs asked from the court instructions to the jury, that the same was not competent to establish the fact, that a general usage did exist in the city of Washington, which authorised a tenant to remove such a house as that which has been erected by the defendant; nor was it competent for the jury to infer from the evidence, that such a usage existed. These instructions were refused by the court.
The plaintiffs then gave evidence, by the examination of a number of persons; who, as owners of real property in the city of Washington, were claimed to know all that appertained to it; to show that the usage, under which the defendant asserted a right to remove the buildings erected by him, did not exist; and thereupon moved the court to instruct the jury, that upon the evidence, it is not competent for them to find a usage or custom of the place, by which the defendant could be justified in recovering the house in question; and that there being no such usage the plaintiffs are entitled to a verdict for the value of the house, which the defendant pulled down and destroyed. These instructions were also refused.
The plaintiffs by their bill of exceptions presented the whole of these matters for the consideration of this Court.
Mr. Coxe, for the plaintiff, contended, that the court erred in giving and refusing the instructions. The question in this case is one of great interest to the owners of property in the city of Washington. The evidence offered by the defendant was insufficient to establish a usage; and, if upon such testimony, a usage can be made out, there is no safety to any owner of property. To establish a usage the evidence must be clear and certain, and uncontradicted; and the court should take care to apply this principle whenever a usage is claimed; as when it has been established it becomes the law of all cases under similar circumstances. The principles of law relative to usage are settled in 1 Gallison's Rep. 444. Collings & Co. vs. Hope, 3 Wash. Cir. Court Rep. 149.
It cannot be contended that the building could be recovered by the defendant, upon the principles which courts have established in favour of trade. No case can be found, in which a building fixed to the freehold was allowed to be taken away. All the adjudged cases go to the extent of permitting instruments and machinery used for the purposes of trade to be carried away, but nothing more. The freehold is never to be injured, and must always be left in the condition it was when the lease commenced. Cited 3 East, 35. Woodfall's Landlord & Tenant, 223. This building was erected for the accommodation of the family of the defendant. It could not therefore be considered as required for the trade of the defendant; nor was it appropriated to a particular rade; the defendant being a carpenter, and also employing himself in vending milk.
Mr Barrett and Mr Jones, for the defendant, argued,
1. That independent of the benefit from the usage, which was set up as matter of defence; the buildings removed from the premises, were erected and used by the tenant for the purposes of his trade, and he had therefore a right to remove them under the general law of landlord.
2. The usage of the city of Washington which was fully proved, recognizes the right of tenants to remove buildings put up by them, on lots which before the lease were in an unimproved state.
3. The instructions given by the court, and their refusal to instruct the jury as required by the counsel for the plaintiffs were correct.
In support of the first point, were cited 1 H. Bl. 258. 2 East, 88. Elwes vs. Maw, 3 East, 37. 7 Johns. 227. 20 Johns. 30.
In the English cases a distinction is taken between fixtures on buildings for agricultural purposes and those for trade. This distinction upon a fair view of those cases cannot be sustained. The principles which have always been applied in those cases to trade, may be as well applied to agriculture. In the city of Washington, where there is and for a long period will be a large space upon which no buildings will be placed, the application of more liberal principles than those found in the English cases is proper and necessary. Cited Woodfall's Landlord & Tenant, 224. Buller's Nisi Prius, 34. 2. 3. The court properly submitted the question of usage to the jury. It was regularly a question for them. Had the court proscribed a rule which would have taken from the jury the question of usage, it would have been error; but here whether the usage was proved was submitted and correctly.
Mr Justice STORY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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