City of Barberton v. Miksch

The first question to be considered is whether the plaintiff, as executrix, possesses the legal capacity to prosecute this action.

It is the contention of the city that the plaintiff is merely the personal representative of her husband, and therefore lacks the capacity to recover damages for trespass occurring after the death of her husband. However, the plaintiff insists that she is not basing her claim upon future trespass, but rather upon a trespass that has already occurred during her husband’s lifetime, and has caused permanent and continuing injury to his land. The trial court followed…