Bush v. Gamble

Opinion, Mr. Justice Clark: This is an action of trespass quare clausum fro git, for cutting, and for cutting, carrying away, and converting timber trees; the claim is for double and treble damages under the third section of the act of March 27,1824,8 Sm. L. 283. At the trial, the plaintiffs offered in evidence the record of an action of ejectment, in which they had recovered, as against the defendants, the undivided three fourths of the premises in question, with the writ of habere facias issued thereon, and the return; and thus established their actual possession at the time this suit was brought, and their right of possession and title when the writ of ejectment issued. Although the testimony is not all printed, it appears from the paper books, and it is not denied, that the plaintiffs then gave in evidence their title according to the abstract filed in the ejectment. The defendants in reply gave in evidence the tax deed to Mitchell: and the plaintiffs in rebuttal proved the payment of the taxes before the treasurer’s sale. The plaintiffs thereby not only re-established their right to the undivided three fourths of the land which they had recovered in the ejectment, but exhibited their right to recover damages beyond the teste of the writ of ejectment: Osbourn v. Osbourn, 11 S. & R. 55 ; Huston v. Wickersham, 2 W. & S. 308. But the plaintiffs only established title to three fourths of the land, and they wore admittedly in possession only to that extent. Not only the judgment in the ejectment, but the teste papers, plainly disclosed the fact that the plaintiffs’ title covered nothing beyond this undivided interest in the land; and, the defendants being in possession of the remaining one fourth, claiming title thereto, we cannot see how the parties can be regarded otherwise than as tenants in common. It is true the testimony disclosed facts which would or might wholly invalidate the treasurer’s deed, under which the defendants claimed title, but the burden of proof was upon the plaintiffs: they [50] •were entitled to recover on the strength of their own title; and, as they established their right only to the undivided three fourths of the land, the defendants were not called upon to exhibit their title to the remaining one fourth; non constat that they did not have a conveyance from John Dick for this outstanding interest. The parties held the iands by several and distinct titles, but occupied them in common: the only unity recognized between tenants in common is that of possession, and we are of opinion that the plaintiffs and the defendants must, in this case, be assumed to bear that relation in the ownership of this land. At the common law, trespass was not recognized as a remedy between tenants in common, except when mesne profits, strictly so called, were sought to be recovered, or there had been an actual ouster from, or destruction of the property: Bennet v. Bullock, 35 Pa. 364; Filbert v. Hoff, 42 Pa. 97; Lane v. Harrold, 72 Pa. 267. But by the second section of the act of May 4, 1869, P. L. 1251, it was provided, that in case of the cutting or removal of timber trees, by one or more tenants in common, without the consent of all the co-tenants, “ the parties injured shall have every remedy in law and equity for the recovery of the said timber trees,” etc., “ 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.” As it cannot be doubted that an action of trespass would have been sustainable for the injury complained of, in this case, against a stranger to the title, it is plain that under the provisions of this act of assembly the plaintiffs have a right to the same remedy. If in any given case, trover, trespass, or replevin might be sustained against a stranger, the same remedy is available to a tenant in common in a like case against his co-tenant, or against any other person acting for or under him; but it does not follow, for the act of assembly does not so provide, that the recovery may be to the same extent. Indeed, it has been expressly held in Wheeler v. Carpenter, 107 Pa. 271, that the penalty provided by the act of Mareh 27, 1824, was not extended by the act of May 4, 1869, to an action by one tenant in common against his co-tenant, for unauthorized cutting and conversion of timber trees. [51] Whether, therefore, this be treated as an action of trespass quare clausum fregit, or an action for mesne profits, compensation is the measure of the plaintiffs’ recovery; that .is to say, three fourths of the value of the timber. We are of opinion that judgment should have been entered on the verdict for single damages only. The judgment is reversed, and judgment is now entered on the verdict for $889.07, with interest from May 17, 1888, and costs.