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plaintiffdefendantdamagessustained
plaintiffstatuteappealcivil procedure

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Butler v. Frontier Tel. Co., 109 A.D. 217, 95 N.Y.S. 684

Facts

Ernest P. Butler owned a parcel of land and was in possession of it at all relevant times. The Frontier Telephone Company entered his property without consent on January 1, 1903, and stretched a wire across it, maintaining this wire until January 10, 1903, when it was removed. Butler sustained nominal damages of six cents for the period the wire occupied his property.

The plaintiff at all the times mentioned in the complaint was, and has ever since continued to be, the owner in fee of the premises described in the complaint, and was and is entitled to the immediate possession thereof.

Issue

Can an action in ejectment be maintained in cases where the soil of the premises has not been actually interfered with?

The question is by no means an academic one. It may be of the utmost importance to litigants seeking to prevent unlawful interference with their rights in real property that they should be able to avail themselves of the provisions of section 1525 of the Code of Civil Procedure, given only to parties to an action of ejectment.

Rule

Ejectment is an action to recover the immediate possession of real property, and the owner has the right to maintain such an action to protect against unlawful invasion or interference with their property rights.

By section 3343, subd. 20, of the Code, an action of ejectment is declared to be 'an action to recover the immediate possession of real property.'

Analysis

The court applied the rule of ejectment by determining that the defendant's act of stringing a wire across the plaintiff's property constituted an unlawful interference with the plaintiff's rights as the property owner. The court reasoned that the owner of real property has rights to the space above their land, and thus, the action of ejectment was appropriate to reclaim possession of that space.

Upon principle it is difficult to see why he should be permitted to maintain ejectment to obtain possession of his property, if improperly withheld, in the one case and not in the other, when there is no such distinction made in the statute giving the right of action.

Conclusion

The court affirmed the judgment in favor of Butler, concluding that he was entitled to the immediate possession of his property and awarded him nominal damages for the unlawful occupation.

I think the judgment appealed from is right, and should be affirmed, with costs.

Who won?

Ernest P. Butler prevailed in the case because the court found that he was the rightful owner of the property and that the Frontier Telephone Company had unlawfully occupied it.

The plaintiff is the owner in fee of the premises described in the complaint, and entitled to the immediate possession thereof, and was entitled at the commencement of this action to have said wire removed from said premises.

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