Page:Harvard Law Review Volume 4.djvu/95

ELEVATED ROAD LITIGATION, 79 action, or if he has not owned for six years previous to the time of instituting a suit, then he can recover for the trespasses com- mitted between the time of his acquiring title and the beginning of the action. In equity we haj^e also seen the court will, as incidental relief to the remedy of an injunction, award past damages accruing within six years prior to the commencement of the action down to the date of the trial} Suppose, however, that a little more than six years before beginning an action a property owner leases property, say for five years. Is he entitled to recover damages accruing during the pendency of the lease } It has been plausibly argued that to him it was a matter of complete indiffer- ence whether during this lease the road is in operation or not, that the cessation of the road would not make his rent a bit higher until his lease expired. It has also been argued that as long as the premises are in possession of a tenant, the land- lord is not entitled to the possession and is not the proper person to sue for a trespass. The first argument seems clearly fallacious. It proceeds on the assumption that the cause of action accrued more than six years before the action was commenced, and hence is barred under the Statute of Limitations. The truth is that the cause of action that accrued within six years was anticipated as likely to occur more than six years ago, so that it is only the anticipation that is barred, not the cause of action which was for trespasses committed within six years, although foreseen as likely more than six years pre- viously, because they wete a continuing trespass that had already been existing several years before the lease was made. And it was the fact of the certainty of these trespasses being committed these six years that fixed the rate of rent, not the fact they had been previously committed. The second argument is, however, a more serious one. Was the landlord the proper party to recover at all for the past trespasses } Ordinarily, when premises are in the possession of a tenant, the tenant, not the landlord, is the proper plaintiff to sue for a trespass to the realty, unless it be one affect- ing the inheritance. So that while the landlord could maintain an action in equity on the ground of restraining an injury to the in- heritance, he could not recover the past damages. The Superior ^ Glover v, Manhattan, 51 N. Y. Superior Ct., at p. 18.