Osburn v. Lovell

Cooley, Ch. J:

The principal.error relied upon in this case is, that the court, in an action for trespass to lands and the cutting of *249 timber, in which the plaintiff claimed to recover treble damages under the statute, refused to receive the evidence offered by the defendant to show that the trespass was involuntary, and made under a bona fide claim of right. The ruling was based upon the neglect of the defendant to give notice under his plea of the general issue of his intention to introduce such evidence.

The statutory provisions bearing on the case are sections 6370 and 6371 of the Compiled Laios, which read as follows :

“§ 6370. Every person who shall cut down or carry off any wood, underwood, trees or timber, or shall girdle or otherwise despoil or injure any trees on the land of any other person, without the leave of the owner thereof, or on the lands or commons of any city, township, village or other corporation, without license therefor given, shall be liable to the owner of such land, or to such corporation, in three times the amount of damages which shall be assessed therefor in an action of trespass, by a jury, or by a justice of the peace in the cases provided by law.”

“§■6371. If upon trial of any such action it shall appear that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that such wood, trees or timber were taken for the purpose of making or repairing any public road or bridge, judgment shall be given to recover only the single damages assessed.”

The view taken by the plaintiff of this statute, and which seems to have been accepted by the court below, is this: that it makes the destruction of timber by a trespasser subject to a penalty of treble damages, but with a special exception of those cases in which the trespass was casual and involuntary or for road purposes. The rule of pleading is then referred to, that where one relies upon a statutory exception, not contained in the enacting clause of the statute, he must by his pleadings bring himself within *250 the exception. —Attorney General v. Oakland Co. Bank,. Wal. Ch., 90; Myers v. Carr, 12 Mich., 63 ; Lynch v. People, 16 Mich., 472 . But this is not always a rule of' pleading; it is sometimes a rule of evidence only: it goes-no further in any case than to require the party relying-upon the exception to present the facts in such form as the case requires; and this may or may not be by special pleadings. The rule was treated as one of evidence merely, in Myers v. Carr, supra. Whether special pleadings are-' necessary, must be determined by other considerations andi by the general rules of pleading.

The general issue at the common law puts in issue everything necessary to be shown by the plaintiff to make out his case; but if the defendant in trespass relies upon justification or excuse, he must plead it specially.—Gould Pl ., ch. VI., § 38-58. Our statutory general issue is at least as broad as that at the common law. —Kinnie v. Owen, 1 Mich., 249 ; Ingalls v. Eaton, 25 Mich., 32 ; Rawson v. Finlay, 27 Mich., 268 .

Now the defendant in this case relies upon neither a. justification nor an excuse. If he cut the timber upon the plaintiff’s land, it is admitted that the act is a .trespass,, neither justifiable nor excusable. All that is claimed by the defendant is, that the circumstances of the trespass were-not such as to warrant imposing upon him penal consequences. It was held in Delevan v. Bates, 1 Mich., 97 , that whatever in an action of tort would go in mitigation, of damages might be given in evidence under the general issue; and in any view that can be taken of this case, the-evidence offered by the defendant would have been receivable on that ground. But it is- not without significance that the statute, when it permits a judgment for single damages; only where it shall appear that the trespass was casual and involuntary, makes no allusion whatever to any special pleading or notice. The inference is forcible that none was-meant to be required. It could certainly answer no impor *251 tant purpose; for when the plaintiff sues for an aggravated trespass he must be supposed to come prepared to meet, whatever would tend to show that it was not of that nature.

Another objection to this judgment is fatal. The declaration contained two counts: one for a trespass at the-common law, and one for the statutory trespass. The jury returned a general verdict of guilty, upon which the judge-proceeded to render judgment for three times the damages, returned. Now, although the verdict established the fact, of trespass, it found nothing more; and the finding could no more be applied to the one count than to the other. It cannot legally be known that the jury would have agreed on the count 'under the statute. The general finding is-, consistent with the fact that some of them may have agreed upon the aggravated trespass and some not. In any event, there was a trespass, which is all they have agreed upon.—See Biggs v. Barry, 2 Curt. C. C., 259; Thayer v. Sherlock, 4 Mich., 173 . The verdict, therefore, only warranted a judgment for single damages.

The judgment must be reversed, with costs, and a new-trial awarded.

The other Justices concurred.