Russell v. Irby

COLLIER, C. J. The seventh section of the act of 1807, to prevent trespasses in certain cases,” enacts, “ if any person shall cut down, carry away, or destroy, any cypress, white oak, black walnut, pecan, or cherry tree, upon any lands not his own, without first having the consent of the [135] owner, he shall forfeit and pay the owner thereof ten dollars for every such tree, so cut, carried away, or destroyed.” Clay’s Dig. 581. There can be no doubt that where a statute imposes a penalty, but omits to prescribe a remedy for its recovery, that an action of debt will lie at the suit of the party entitled to it. The material question in the case before us, is, whether to subject one to liability under the statute, it is enough to show mistake, or even carelessness. We think it entirely clear, that the cutting of trees upon another’s land, under the impression that the party had not gone beyond his own boundaries, was not within the contemplation of the legislature. Moral justice would forbid any extraordinary infliction in such a case, and the damages recoverable at common law, would afford an adequate reparation. Whether negligence so gross as to indicate an entire recklessness, or indifference to the rights of another, would be a substitute for actual knowledge, or authorize its implication, need not be considered. The facts before us show nothing more than a mere accident or mistake, consistent with honest intention. This construction of the act rests not upon the mere fitness of the thing, and the suggestions of reason, but is supported by at least one most respectable adjudication directly in point. In Batchelder v. Kelly, 10 N. Hamp. R. 436, which was an action under a similar statute to recover the penalty prescribed for cutting and carrying away trees on the land of another, the court said, to subject a party to the penalty; “it must appear that the act was done knowingly and wilfully, and not through mistake or accident; in which latter case the party would be entitled to recover only the value of the injury he had actually sustained. The general tenor of the statute is such, as wholly to preclude the idea that it was designed to apply to unintentional trespasses.” This latter remark applies with equal justness to our statute. If the defendant would not be liable if he cut the trees himself, it is perfectly certain that he cannot be charged if they were cut by his servants, supposing they were obeying his instructions, and not intending to trespass on the plaintiff’s land. It is therefore unnecessary to consider how far, [136] and under what circumstances, one is liable for the acts of others in his employment, either as slaves or hired servants. In the case cited, it was held, that where the servant of another by mistake or accident, cut trees beyond the line of his employer, the removal and appropriation of the trees by the master, with a knowledge of such mistake, did not show an original, wilful, and intentional cutting within the statute. “ Carrying the timber away,” say the court, “might have had some tendency to have convinced the jury, that the defendant was cognizant of, and approved the original cutting ; but such would not have been the necessary legal effect of the evidence as a rule of law ,• and most clearly an affirmance of the cutting in this manner would not have altered the original nature of the act, so as to have rendered that wilful and malicious, that was originally an unintentional and accidental trespass. Could it have had any leaning in this point of view, it would only have been for the consideration of the jury.” This view is quite sufficient to show that the charge of the circuit court cannot be supported. The removal and appropriation of the trees by the defendant, makes him liable to pay for them what they were worth, though he was not aware at the time, that they were cut on the plaintiff’s land; and this may be recovered, if the defendant has no available defence in some appropriate form of action. What we have said, will most probably be decisive of the present case. Whether any, or which of our statutes of limitation can be successfully invoked to bar a recovery in an action on the statute in question, we need not inquire. We have but to add, that the judgment is reversed, and the cause remanded.