Snelling v. Garfield

Gray, C. J. The Gen. Sts. c. 138, § 10, provide that if any person without license wilfully cuts down or carries away any trees on the land of another, “ the owner may recover, in an action of tort, three times the amount of the damages that shall be assessed therefor, unless it appears that the defendant had good reason to believe that the land on which the trespass was committed was his own, or that he was otherwise lawfully authorized to do the acts complained of, in which case he shall be liable only for single damages.” The declaration in this case is in tort, and the second and third counts gave the defendant full notice of a cause of action which would entitle the plaintiff to treble damages under the statute, unless it should appear at the trial that the defendant had good reason to believe the land trespassed upon was the defendant’s, or that he was otherwise lawfully authorized to do the acts complained of. If that fact should appear, it would not defeat the action, but would only affect the amount of damages. It need not therefore be negatived by the plaintiff in pleading. The treble damages given by the statute need not be specially claimed in the declaration; and the court might lawfully direct the jury, upon being satisfied of the facts necessary to constitute the cause of action for which the plaintiff was entitled to recover treble damages, either to assess single damages for such cause of action, leaving it to the court to treble them, or, after estimating single damages therefor, to treble them themselves. Clark v. Worthington, 12 Pick. 571. Worster v. Canal Bridge, 16 Pick. 541, 549. Pressey v. Wirth, 3 Allen, 191. The defendant has therefore no just ground of objection to the rulings and proceedings at the trial; and, according to the terms of the report, the verdict is to be amended, and Judgment entered for the plaintiff for the larger sum.