Wheeler v. Carpenter

Mr. Justice GobdoN delivered the opinion of the court, November 10th, 1884. We cannot agree with the court below that the damages as found by the jury, in the case in hand, should have been trebled. Had the facts been as the counsel for the defendant in error argued, that the defendants re-entered after an abandonment of the premises, the action of the court might have been justified. But it does not appear that the jury so found. The plaintiff put in evidence the fact that the defendants had cut trees of a less size than those reserved in the deed of Wheeler et al. to John G. Carpenter; this being so; the verdict may have been for the price of such trees only; that is, for a mere abuse of their right; and if such were the case, if the defendants still had the right of entry under the reservation, then the case will not admit of the application to it of the Act of 1824. For in order to apply a statute such as this, which is in its character penal, it is necessary that the plaintiff should show affirmatively that the defendants are, by the facts of the case, brought within its provisions. As, however, the fact of the abandonment of the land by the defendants and their unauthorized re-entry has been left in doubt, that doubt must be resolved in their favor. Now, if we are to take Boults v. Mitchell, 3 Har. 364, as authority, the exception in 275 favor of tbe grantors in tbe deed above mentioned of “all the pine timber fit for sawing,” kept in them such a right in the soil upon which the timber was growing as to constitute them tenants in common with the grantee. They were thus owners having the right to enter; hence, to their case the provisions of the Act above recited cannot apply. But, more than this, the defendants having the right to enter and cut all timber fit for sawing, were not, according to the case cited, trespassers, though they may have taken trees to which they were not entitled. They'had not only the right to go upon the land to cut and take away the timber proper for the manufacture of boards, but to seiecfc such timber and judge of its fitness for the use intended; unless, therefore, there was some clear and wilful abuse of this right on part of the defendants, the action of trespass was not the proper remedy, and much less were they subject to the imposition of the statutory penalty. But it is urged that tbe action of the Common Pleas is justified by the first and second sections of tlie Act of 1869. These sections provide (1) “ That it shall be unlawful for any owner or owners of any undivided interest in timber land to cut or remove, or cause to be cut or removed, from the said land, any timber trees without first obtaining tbe written consent of all co-tenants in said premises;” and (2) that “the parties injured shall have every remedy in law and equity for tbe recovery of tbe said timber trees and their products, and also for the recovery of damages for the cutting or removing of the same, which they now have against an entire stranger to the title.” But we cannot see how this Act can be made to fit the case in hand. It does not, either in terms or by implication, authorize the application of the penalties of the Act of 1824. The party injured may have every remedy against his offending co-tenant that he could have against a stranger; but a remedy is not a penalty; a remedy is intended to restore to the person injured bis property or its value in money, whilst a penalty is imposed on the offender by way of punishment. When, therefore, a statute gives a remedy only, we cannot imply a fine or penalty. Further, and without reference to the Act of 1824, the statute under discussion does in fact impose a penalty peculiar to itself. It is operative only on joint owners of timber lands. Now, let us suppose that there are two such owners or co-tenants, and that one enters and outs timber without the assent of the other, lie thus makes himself liable, under the statute, to bis co-tenant as a trespasser, and his title counts for nothing, since be is made to occupy the place of a stranger. The result, then, in an action against him is that the plaintiff recovers the full price of the timber as though he were tbe sole owner, whilst tbe defendant, on 276 the other hand, suffers in damages not only to the amount of the value of the plaintiff’s property, but also that of his own. Here, then, is a penalty, and viewed from a common law standpoint, a very severe one. But if we are to import into the Act of 1869 the penalty of the Act of 1824, we would be obliged to give to the plaintiff, in the case above stated, damages amounting to six times the value of his own timber. We need not argue that no such result as this was intended by the framers of the Act of 1869, or that it was really not intended that a joint owner should be punished for the use of his own property in a penalty double that imposed upon a trespassing stranger. Moreover, the Act of 1869 is not operative where the one joint owner has the assent in writing of the other to enter and take timber. When once that assent is given, the protection of the Act cannot afterwards be invoked to prevent or remedy an infraction of the contract. So, in the case in hand the statute cannot apply; for the reservation in the deed above referred to was, in effect, an agreement that the vendors, their vendees or licensees, should have the right to enter upon the lands and take off the saw timber, and if they exceeded this reservation by taking trees that were not embraced within it, it was, at most, but a violation of their contract, and the remedy must be looked for somewhere else than in the Act of 1869. We conclude, then, that an error was committed in the court below, in this case, by entering judgment for treble the amount of damages found by the jury against the defendants ; arid it is, therefore, ordered that the said judgment be reversed, and that judgment be entered for the plaintiff in the amount of the verdict only.