Achey v. Hull

Campbell J.:’ The statute under which this action was brought, provides that persons who cut down or carry off any wood, underwood, trees, or timber, &c., without leave of the owner of the land, shall be liable to the owner in treble damages. If the trespass was casual and involuntary, or the defendant had probable cause to believe the land was his own, and in some other cases, the remedy is confined to single damages.— 2 Comp. L. p. 1147. It is objected to the declaration that it contains no reference to this statute, but refers to an impossible one not contained in any of our statute books. It refers to [429] chapter three, title one hundred and eleven, of the Revised Statutes, entitled “Of Trespasses on Lands.” The true reference should have been to chapter one hundred and eleven. We do not determine what might have been the effect of such a mistake if the declaration had been demurred to, but this declaration having been filed in a justice’s court, where form is not so rigidly adhered to, and having been pleaded to, We are not disposed to regard the error as fatal. The title of th.e statute is correctly given, and there is no other chapter having this title. It would have been a proper case for amendment, and there seems to be no danger that any one could be surprised or misled by the declaration as it stood. We think the mistake is not a sufficient ground for reversal.. The other questions arising refer to the right of action against the alleged possession by the defendants, and to the ruling upon damages. It is claimed that the defendants below were disseizors, and that the plaintiff, not having declared for the wrongful entry, can not recover for injuries done during the possession under it. If this were an ordinary action of trespass for a disturbance to possess'ory^rights, we are inclined to think there Was enough in the case to entitle defendants to go to the jury on this point. But although the counsel for the plaintiff did not draw the distinction,'we are of opinion that this action differs from the ordinary action of trespass quare clausum fregit, and lies in some cases where that action will not. And in the case before us, we do not regard the question of the defendants’ possession, or its nature, as [in any way material, except upon the right to treble damages, which does not arise, as the record is now framed, and which is not insisted on. The statute in question is not framed to protect possessory rights, but was made to give to the owners of the fee a right to sue, in the form of trespass, for the «enumerated injuries to their inheritance. If the tenant in [430] possession, whether owner or not, seeks damages for the. disturbance of rights merely possessory, he is still left to his common law action. But here the damages which are allowed to be trebled, are not damages to the temporary-possession, )but to the freehold. In Illinois, where they have a statute similar to ours (except in the form of remedy, which is debt), it has been held repeatedly that the declaration must aver in express terms the ownership of the title in fee, and that such a title must be strictly proved, unless informal proof is admitted without objection; and that the action will not lie for injury to the possession.— Wright v. Bennnett, 3 Scam. 258; Whiteside v. Divers, 4 Scam. 336; Clay v. Boyer, 5 Gilm. 506; Edwards v. Hill, 11 Ill. 22. The latter case holds that the law will not permit separate actions by several joint or common owners. But although, this doctrine also applies in general (as was intimated in Draper v. Williams, 2 Mich. 536), to actions of trespass, by tenants in common, yet it seems to be held that their non-joinder can only be set up in abatement, and if not so pleaded, merely goes to apportion [the damages. See 1 Chit. Pl. 66, and notes. In the present case, Mr. Hull proved, without objec-. tion, a claim of ownership to one undivided half of the. land, but no more. It was not pleaded or objected that his co-tenant did not join in the suit. And in the ab-. sence of any claim or objection that the damages were, entire, we can not presume that they were not apportioned.. The question of the defendants’ [possession, and its nature, is therefore entirely irrelevant, inasmuch as it could only be important in this action to prevent the trebling-of damages, in case, he had reason to believe he was on his own land — and no treble damages have been assessed. The only question remaining, therefore, is, whether the rule of damages was correctly given to the jury. The statute, fairly construed, would include not merely the. [431] value of the timber or wood cut, but such damages as accrued to the freehold by their destruction. When the action is merely for carrying away timber already cut, the damage could not well go beyond its value; but where standing trees are cut down, the rule of damages should fairly be the amount of which the value of the estate is diminished by their destruction. * In the case before us, the declaration contains no distinct allegation of such damages, and for that reason, the court below might possibly have declined, if the objection had been taken to the sufficiency of the declaration, allowing the jury to consider them. A party can not claim damages of this bind, without some allegation to support them; and had the defect been pointed out, unless the court had seen fit to permit an amendment, the plaintiff might perhaps have been confined to the value of the timber. But the only ground taken was that the statute did not permit anything beyond that value; and in denying this, and allowing such damages as directly resulted from cutting the timber, there was no error. No exception is alleged, and no error assigned, on account of the insufficiency of the general allegation of damages to permit such evidence to be received, and we can not reverse a judgment for an error not legitimately before us. For these reasons the judgment is affirmed. The other Justices concurred.