Cumberland & Oxford Canal Corp. v. Hitchings

Appleton, C. J. This is an action of trespass quare clausum. The plaintiff corporation was created by the special act of 1821, c. 74, passed March 15th. By § 7, “if any person or persons shall willfully, maliciously, or contrary to law,” commit certain trespasses therein specified, “such person or persons shall forfeit and pay ” a sum not less than fifty dollars, nor more than five thousand dollars, and be further liable to indictment for such trespass or trespasses, etc. It is insisted that the only remedy for the plaintiffs is under this section, and that the action for trespass quare clausum is not maintainable.. [209] But such, we think, cannot have been the intention of the legislature. The penalty is imposed for certain trespasses committed “ willfully, maliciously, and contrary to law.” The action for such penalty must be commenced “ within one year after the offense was committed.” R. S. 1871, c. 81, § 90. This is an action for a trespass in breaking and entering the plaintiffs’ close and committing certain trespasses therein. There is a manifest difference between a mere trespass and a trespass committed “willfully, maliciously, and contrary to law.” A trespass may be committed without malice and under color of right. According to the construction of the statute, by the defendant’s ‘counsel, the plaintiff can only recover for trespasses committed “willfully, maliciously, or contrary to law ” and are without remedy for all other trespasses. Statutes are not to be construed as taking away a common-law right, unless the intention is manifest. Nothing here indicates such an intention. The seventh section was for the increased protection of the plaintiffs’ rights for their diminution or destruction. Nothing indicates that the legislature intended to deprive the plaintiffs of all remedy for trespasses committed on their premises except for those which are willful and malicious and contrary to law, and that all right of action should be barred by a limitation of one year. Demurrer overruled. Declaration good. Kent, Walton, Dickehson, BaRbows, and Tapley, JJ., concurred.