Shiffer v. Broadhead

Opinion, Me. Justice Steeeett : There was no error in recommitting the report of the referee for the purpose of taking additional testimony in relation to the size of the trees in controversy. The supplementary act of June 22, 1871, P. L. 1363, referring to the provision for filing exceptions, etc., declares “It shall be the duty of the Court of Common Pleas to hear and decide upon all exceptions so filed [269] to the report of the referee, reserving to the court, however, the power of committing the report again to the referee should justice require it.” The power thus reserved, is an ample warrant for such action of the court as is complained of in the first specification. Indeed, the exercise of that power is sometimes necessary to prevent a miscarriage of justice. The agreement referred to in the second specification was sufficiently proved to make the record thereof competent evidence. Under the act of 1791 and subsequent acts, justices of the peace are authorized to receive proof of deeds and other instruments of writing in the same manner as judges of the Supreme Court or Court of Common Pleas under the act of March 18, 1775. The first and second spepifications of error are not sustained. The third specification involves a question of more importance. In his second report (conclusions of fact, paragraph nine), the learned referee finds as follows, viz.: “ 9. That of the said forty-nine thousand and seventy-one feet of white pine timber in the log, mentioned in the last before conclusion of fact bio. 8, there were sixty-nine trees, ten inches and upwards in diameter at the top of a log twelve feet long, first cut from the stump, which together would make thirteen thousand feet of lumber, the market value of which in the stump was three dollars and fifty cents per thousand, or forty-seven dollars and twenty-five cents. And that there were of the same forty-nine thousand and seventy-one feet of white pine timber in the log, three hundred and fourteen other trees, measuring less than ten inches in diameter at the top of a log twelve feet long, first cut from the stump, which would make thirty-six thousand and seventy-one feet of lumber, the market value of winch in the stump was three dollars and fifty cents per thousand feet, or one hundred and twenty-four dollars and fifty cents. And that the said diameter above given is the diameter of the several trees mentioned as it existed and was in 1867 when the said written contract between Gilbert Shiffer and John A. Broadhead was entered into, ascertained from actual measurement of the stumps of the same trees cut in 1885, deducting from the whole number of annual rings formed, seventeen of the outer rings, and then measuring the diameter of the inner portion remaining, such latter measure270 meat giving and being the diameter taken and received by the referee as the true diameter, in 1867, of the trees in controversy, cut in 1885.” These facts, in connection with other findings of fact and conclusions of law in favor of plaintiff, would have logically resulted in an award in his favor, if it had not been for the learned referee’s last conclusion of law, wherein he in substance held that plaintiff was not entitled to recover in the present form of action. The reason for that legal conclusion, in the referee’s own language, is as follows, to wit: “That as the defendants’ right of entry on the Broadhead tract to cut and remove that portion of the white pine timber which in thp tree would measure ten inches in diameter at the top of a log twelve feet long, first cut from the butt, was not determined at the time of the entry thereon by them, as claimed in this case, the plaintiff is not entitled to recover against defendants in this action.” The referee accordingly reported in favor of defendants and against plaintiff “no cause of action.” .To this, among other things, plaintiff excepted. The exceptions were all overruled by the court and judgment' entered in accordance with the report of the referee. This action of the court in ordering judgment for defendants, etc., constitutes the third and last specification of error. As we have already seen, the learned referee found, inter alia, in substance, that in 1885, on the lot referred to in the agreement of 1867 as “ the Broadhead lot,” the defendants cut certain trees, which, under said agreement, they had a right to cut; and during the same time they cut on said lot certain other trees, which, under said agreement or otherwise, they had no right to cut; but, inasmuch as they had a right to enter on the premises for the purpose of cutting and removing the first-mentioned trees, he concluded, as matter of law, that they were not liable in this action of trespass, etc., for cutting and removing the last mentioned trees. That conclusion, we think, is a non sequitur. It is true they had a right of entry on the premises at the time the cutting was done, but it was not a right of entry for all purposes. It was solely for the purpose of cutting and removing such trees as, under the agreement, they had a right to cut, and nothing else. In cutting and removing other trees which they had no right, and [271] must have known they had no right to cut, they became trespassers as to such unauthorized and illegal acts, and as such they were liable in this action. The extent, or rather the basis of their liability is fixed by the finding of the referee as to the value of the timber cut by them without authority so to do. The third specification is sustained. Judgment reversed, and record remitted for further proceedings in accordance with this . opinion.