
    Joshua A. Jefcoat vs. William Knotts and Jacob Redmund.
    
      Husband and Wife — Abatement—Case—Ways—Damages.
    Where husband and wife join in an action on the case for obstructing a right of way, appurtenant to the wife’s inheritance, and wife dies pending the action, the suit does not abate, but husband may go on and recover judgment; and in sueh case the measure of damages will be the whole amount of damage sustained, until the death of the wife, and after-wards a proportion equal to the husband’s interest in her estate as her heir.
    Vindictive or punitive damages may be given in an action on the case for obstructing a right of way.
    BEFORE GLOVER, J., AT LEXINGTON, EXTRA TERM, SEPTEMBER, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    “This was an action on the case brought, to recover damages, occasioned by the obstruction of a private way.
    “Under proceedings instituted in the Court of Equity, a writ was issued to make partition of the real estate of Benjamin Jefcoat, deceased. In their return to this writ, the commissioners allotted to Marcella Jefcoat, the wife of Joshua A. Jefcoat, and daughter of the intestate, Benjamin Jefcoat, a tract of land marked H on the plat, which accompanied their return, and they recommended that'another tract, designated by the letter B, and which nearly surrounded the tract H should be sold for partition. In conclusion, the commissioners say: 1 We also give to J. A. Jefcoat, and Marcella Jefcoat, his wife, from letter H, through letter B, the present road leading to the old mill.’ At June Term, 1854, of the Court of Equity, this return was confirmed ; the commissioner of the Court of Equity was ordered to sell tract B, and it was further ordered ‘ that Joshua A. Jefcoat, and Marcella Jefcoat, his wife, their heirs and assigns, have the right of way from the said tract H, through the said • tract B, to the. old mill, where the road now runs.’ Afterwards, at the commis.sioner’s sale, on the first Monday in November, 1854, Jacob ‘ Eedmund purchased tract B, and on the 12th February, 1855, he sold it to William Knotts, his codefendant. In the Spring of 1855, the way through the tract B was obstructed by fences, enclosing a field, and a new road was opened, which deflected around the field, but was computed to be thirty-three yards shorter than the old.
    
      “ This,, action was commenced by Joshua A. Jefcoat and Marcella., .Éf&^ifey“'September 29, 1855. Marcella Jefcoat diedéimSeptembeéj ,1856, leaving her husband, Joshua A. Jef-coa|,; andysey^ral chillaren surviving, and her death was suggested oh"fb;d're6bf|l||The identity of the way was established, anql itf,|Lp.p^.r.ed7 that|] the change made by the defendants embraced áoo'tít4c«fe¿}mlf of the distance between its termini.
    “ Theré''"was:n¿á$versity of opinion respecting the relative advantages of the two ways. Thirteen witnesses preferred the road designated by the decretal order, and obstructed by defendants, while thirteen believed that the new one substituted was as good, if not better. When the defendant’s counsel .commenced the examination of witnesses touching the respective merits of the two ways, I suggested that such evidence could not justify the obstruction complained of, and for that purpose was irrelevant; but, as the objection to it was not insisted upon, the witnesses on both sides were fully heard, and on this, as on many questions arising from Pond Branch litigations, the number of witnesses was equal.
    “ The motion for a nonsuit, on the ground on which it is renewed, in this Court, was refused, and the jury was instructed that . Joshua A. Jefcoat was entitled to recover for the' whole actual loss sustained, during the lifetime of his wife, and the one-third of such actual loss sustained since her death. They were also informed tbat they were not limited to such damages, only as would recompense tbo. plaintiff for bis actual loss; but that an element entering into the estimate of damages, in cases like, this, is the motive, of the defendant, and that, if they saw any, circumstances showing evil intention and willful conduct, they might find punitive damages. • ' ■ ■ ■
    “ The actual damage consisted in the loss of some timber, which was prepared and ready to be hauled to a mill, in which the plaintiff was jointly interested, with. others, when the way was obstructed. Evidence was .also offered to show that plaintiff’s interest in the mill, which was onthe termini of this obstructed way, was wojá®*m[e^<¿l^jj^ day, and that the timber was supplied f$T^jtbnill fromHlJe.tract H, where he lived. Also, other evidence, ^h^jyipgv(^\ever, rather speculative than actual damaKjAvas ^Hren. Tqj, the plaintiff’s remonstrance against the fcbstrucJign^^TSheJvay, William Knotts directed RedmmniWífrar up a.fqp^e and clear a road around it. William KnoFfesj^s^gaSM to open another road for the plaintiff, who replied that he was afraid of him; that this was the road given to him ; was his only road and his right, and that if he allowed' this change, after a while he would be subjected to a greater one.;
    “ The jury, by their verdict, established the.way designated by the decretal order of the Court of Equity, and found six hundred dollars against the defendant, William Knotts, and for the defendant, Jacob Redmund.”
    The defendant, William Knotts appealed, and now renewed his motion for a nonsuit on the ground, -that the case had abated by the death of Marcella, the wife of the plaintiff, Joshua A. Jefcoat.
    And failing in that motion, then he moved for a new trial on the grounds:
    
      1. Because it is submitted tbat tbe alterations made, by tbe defendant, of tbe road in question, were not sucb material deviations as to’ destroy its identity or to give tbe plaintiffs a right of action, and tbat bis Honor erred in ruling and instructing -tbe jury otherwise.
    2. Because it is respectfully submitted tbat bis Honor erred in charging tbe jury, that in estimating tbe plaintiffs’ damages it was their duty to give him tbe value of tbe use of tbe mill, during tbe whole of his term, from tbe obstruction until tbe death of bis wife and one-third thereof since her death to the present time.
    3. Because tbe damages found are excessive.
    
      Fort, for appellant.
    Tbe plaintiff was bound either to join bis wife in tbe action for tbe injury complained of, or be bad an election to sue in bis own name, or join bis wife, as best advised; in either event, whether bound to join, or having elected to join bis wife, tbe action, in case of his death, would have survived to her. It was, in fact, her cause of action, and nothing, for which tbe husband should.have sued alone, could be included in sucb action; and, of course upon her death, tbe cause of action cannot survive to theLusband, as a mere survivor. “ Tbe true rule is, that in all cases where tbe cause of action by law survives to tbe wife, tbe husband cannot sue alone.” 1 Chit. PL 29, note 2; Clapp vs .Inhabitants of Stough-ton, 10 Pick. 463. If the wife die pending an action by herself and husband for any tort committed either before or during coverture,' and to which she is a necessary party, the suit will abate. 1 Chit. PI. 75.
    As to the alteration of the road. The changes of the road in question were not material or detrimental to the rights of the plaintiff, and gave no cause of action. And the defendant denies that tbe proceedings in equity fixed tbe precise tract or exact locality of tbe plaintiff’s way or road, so as to renders, it so permanent as not to be' subject to improvement, if tbe convenience of tbe parties required it. “ It is said that a private way by grant, and a private way ex necessitate after tbe latter bas been selected, stand on tbe same footing.” Williams vs. Safford, 7 Barb. 309 ; 3 Kent’s Com. 425, 512, note 1. A right of way from necessity is by grant. 2 McC. 447. Tbe law allows only one road (from necessity) a right of egress and ingress; but it need not always be by tbe same way. Tbe party claiming tbe right bas ño cause to complain, so a convenient way be assigned him, even though it vary every day. 2 McC. 450. Changing a road between any two given points, for the purpose of ’straightening a fence, or for tbe convenience of tbe parties, so that tbe way is still kept open- from one place to tbe other, I should not consider as destroying its identity. 2 McC. 451. Every immaterial change in a road is not a destruction of its identity, but it must depend upon tbe situation of the country. 2 McC. 445. That tbe use must be of tbe same way twenty years, but after that time slight changes would not affect tbe right. 5 Eicb. 183.
    If husband and wife bad both lived to the trial, a recovery would have been bad to tbe extent of tbe whole injury. But tbe wife having died pending tbe action, and nothing having been recovered, the husband now, even if tbe action survives to him, could recover only tbe one-third of tbe whole damages — for no part of tbe damages for that in-, jury was reduced to possession by tbe husband. An action by husband and wife, for a proper cause,, to them jointly, cannot survive to him as a distributee of„ her estate, after her death, for in one character be sues as husband., and in tbe other, be would have to sue or maintain tbe action as a dis-tributee, and join tbe other co-distributees. Tbe death of the wife cannot effect such a transmutation of tbe character of tbe husband, so as to sustain this action. The,Court will always grant a new trial when the damages are capricious. Poppen-heim ys. Wilhes, 2 Eich. S56.
    Meetze, Gregg, contra,
    cited 1 Chit. PI. 55, 56, 75, 51, 63, 64, 65; 7Stat. 593.
    
      Baushett, in reply,
    cited, 2 Tidd. Pr. 763,1115; 13 Eng. C. L. E. 163.
   The opinion of‘the Court was delivered by

WITHERS, J.

■ The plaintiffs, as husband and wife, brought their action on the case for the obstruction of a right of way declared appurtenant to the wife’s freehold by a decree of the Court ’of Equity; in a case for partition. The wife died pending.the action, her death was suggested on the record; the plaintiff,. Jefcoat, was allowed to proceed as surviving on the record, and .to recover for all damages arising from the tortious.act.up to the death of the wife, and one-third of the same arising since her death, according to his .interest in her realty under the Act for distributions of 1791.

• The grounds of appeal arise out of this state of facts, and such’ ruling upon the Circuit.

1. Did the action abate by the death of the wife ?

If the action had been to try title and for damages on account of a trespass upon the wife’s freehold, the death of the wife, pendente lite, would not have worked an abatement, according to the course of our decisions, ■ but the husband, would have the right to proceed and recover damages according to the standard prescribed on the Circuit .for this case. Syme and wife vs. Sanders and others, 2 Strob. 332. This rule is derived from our doctrine that one tenant in common may sustain an action of trespass to try title without fear of plea in abatement or nonsuit for nonjoinder of others, and from the operation of our statute of distributions, which makes the. husband a distributee together with the children of the wife, both as to realty and personalty. ■ It is fruitless, therefore, to inquire into the reasons of a contrary rule, arising from the doctrine of primogeniture in England, or any rule that may exist there requiring the joinder of tenants in common or joint tenants. The only question is, whether an action on the case for disturbing the enjoyment of an easement appurtenant to the wife’s freehold, stands upon the rules affirmed in Syme and wife vs. Sanders and others.

It is evident that the destruction of this right of way, or its injury, was a damage to the wife’s, freehold, at the same time that it worked an injury to the usufruct.of the husband in that freehold estate. For damages to the real property of the wife, or for a wrong which prevents, the exercise of a right by husband and wife, they may join, stating the interest of the wife in the declaration; or the husband may sue alone. Yide Com.- Dig., Baron & Femme, Y. & X., where various instances exhibiting this doctrine are put. “ If a femme sole hath a right of common for life, and she takes husband, and he is hindered in taking the common, he may have an action alone without his wife, it being only to recover damages.”— Bacon, Baron & Femme, K. “If a femme sole is possessed for years of a close, to which time out of mind there hath been a way'through the close of J. S. next adjoining, and J. ¡3. erects a building ex transverso vise predicts, so that she cannot use the said way, and after she marries, the baron and femme may join in an action for the stoppage during the coverture, declaring that after the coverture they could not use the said way, etc.; because the wrong was done to the femme, and the baron had the close in her right.” — lb. For this, abundant authority is cited. Wherefore we see that the husband, -in this case, might have alone sued for damage, to such right as was exclusively his, or he may have joined his wife for such damage as was done to them both; which places tbe case precisely on the footing of that of Syme and wife vs. Sanders and others, and settles the questions as to abatement and the standard of damages against the defendants, and in accordance with the judgment pronounced on Circuit.

The only other question is that arising out of the complaint that the damages are excessive.

The damages found for the plaintiff were $600. The sum seems very large when we advert to the evidence of any actual loss by Jefcoat. But punitive damages may be given in such an action as this— Windham vs. Rhame, 11 Rich. 283 — and we cannot say that there was no evidence to maintain the finding of such in this instance. Unfortunately, as we think, the jury and this Court have knowledge of too litigious a habit indulged by parties to this cause and their connections in relation to real estate, and the enjoyment of it, situate on Pond Branch, the locus in quo as to the present litigation. Many alternate victories and defeats, in the civil and criminal jurisdictions, have attended the fortune of what seems to be contests between families represented by these parties in this instance. Each claims rights, slricla juris, and that rule of decision not having been violated on the Circuit, the result there must stand unreversed, and the motions here fail, and it is adjudged accordingly.

O’Neall, Wardlaw, Whitíter, and' Glover, JJ., concurred.

Motion refused.  