Barnes v. Jones

By the Court, Crockett, J.: The action is to recover treble damages for a trespass ' committed on the plaintiff’s land, by cutting down a large number of trees growing thereon; and is founded on section two hundred and fifty-one of the former Practice Act, which provides, in substance, that if any person shall cut down, girdle or injure any tree or timber on the land of another, or on the street or highway in front of another’s house, village or city lot, or on the commons or public grounds of any city or town, or on the street in front thereof, “without lawful authority,” he shall be liable for treble the amount of damages which may be assessed therefor, in a civil action.

The complaint avers that the plaintiff owned the land, and that the defendants, “without leave of the plaintiff, wrongfully” entered and cut down and carried off the timber, whereby the plaintiff was damaged in a specified sum, “ contrary to the form, force and effect of section two hundred and fifty-one ” of the Practice Act, giving its title and date. There is no averment that the trespass was committed knowingly, willfully or maliciously. The answer denies that the plaintiff owned any of the land described in the complaint, except a certain specified portion thereof, and that any of the timber was cut on this portion. The court finds that the defendants cut and carried away from the plaintiff’s land described in the complaint timber of the value of one thousand two hundred dollars; but that they entered “ under a mistake as to the identity of the land, believing it to be a portion of another tract which they claimed by purchase.” [305]The court trebled the damages, and entered a judgment for the plaintiff for three thousand six hundred dollars; from which, and from the order denying their motion for a new trial, the defendants appeal.

The ground chiefly relied upon for a reversal of the judgment is that the court erred in trebling the damages; and we are of opinion that the judgment is erroneous in this particular. While the statute does not so state in terms, it is clear, we think, that it was not intended to apply to cases in which the trespass was committed through an innocent mistake as to the boundary or location of a tract of land claimed by the defendant. Similar statutes of other States have received this construction, and we are satisfied it is correct. (Batchelder v. Kelley, 10 N. H. 436; Russell v. Irby, 13 Ala. 131; Perkins v. Hackelman, 26 Miss. 41; Whitecraft v. Vanderver, 12 Ill. 235.) In the case first cited, the Supreme Court of New Hampshire said: “ The general tenor of the statute is such as wholly to preclude the idea that it was designed to apply to unintentional trespasses;” and in Russell v. Irby, the Supreme Court of Alabama said: “We think it entirely clear that the cutting of trees upon another’s land, under the impression that the party had not gone beyond his own boundaries, was not within the contemplation of the Legislature. Moral justice would forbid any extraordinary infliction in such a case, and the damages recoverable at common law would afford an adequate reparation.”