Opinion
September Term, 1897.
Clark L. Jordan, for the appellant.
Edgar A. Spencer, for the respondent.
The complaint in this action was dismissed upon the trial, on the ground that it states a cause of action for ejectment only, and that, upon the facts proven, an action of ejectment could not be maintained against the defendant.
Without discussing the question whether or not such an action would lie, we are of the opinion that the trial court imposed too strict a construction upon the complaint. It is true that such complaint states all the facts which would be necessary to establish a cause of action in ejectment against the defendant. It avers that the defendant unlawfully entered upon the premises described in the complaint, they then being the property of and in the possession of the plaintiff, and that it is still in possession thereof and unlawfully withholds them from the plaintiff. But, in connection with these averments, it alleges several other facts that are not at all applicable to an action in ejectment. Thus it states that when such entry was made, the servants and agents so making it stretched wires across and over the entire premises; and that such possession was so taken and is still held for the purpose of transmitting electricity across the premises upon such wires, and for the purpose of maintaining electric lights for its own use, in violation of the plaintiff's rights and without paying, or offering to pay, any compensation therefor, and without any right or title so to do. These additional statements characterize the possession which the plaintiff claims the defendant has, and the prayer for judgment, that the defendant remove such wires from said premises, indicates what the possession was that the plaintiff wished surrendered to her. These additional facts show that the defendant has, without lawful authority, and in violation of the plaintiff's rights, entered upon her premises, stretched its wires across the same, and is still — in contempt of her objection — using and maintaining them there. Here is a cause of action set up which the facts proven sustained. We do not think that they should have been treated as surplusage merely, although averred in connection with the further statement that the possession of the premises described was unlawfully detained from her. We think the facts proven were admissible under the complaint, as it should fairly be construed, and that being proven to the court they established her right to a portion, at least, of the relief which she asked, to wit, the judgment of the court that defendant remove the wires which it was maintaining there. Such a judgment could easily be enforced under the provisions of section 1241 of the Code.
Moreover, all these facts were proven without any objection on defendant's part that they were not within the issues tendered by the complaint, and, being so before the court, it should have rendered judgment for the relief which such facts warranted.
For these reasons the judgment must be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed, new trial granted, costs to abide the event.