Michigan Land & Iron Co. v. Deer Lake Co.

Morse, J.

The main question in this case relates to the recovery of treble damages under the statute 1 by the plaintiff.

The plaintiff brought suit and recovered judgment in an action of trespass against the defendant, for the cutting down and carrying off of pine timber growing upon its lands.

The timber was cut by the servants of the defendant, under the direction of its foreman.

The objections to the verdict, which was that the trespass was casual and involuntary, are confined to alleged errors of the court in his instructions to the jury.

It is asserted by counsel for the plaintiff that although the circuit judge undertook to charge the jury that the burden was upon the defendant to show that the trespass was casual or involuntary, yet, in effect, he instructed them quite the opposite, as follows:

“ In determining this question there must be some evidence of willfulness, wantonness or evil design on the part of Perry *146 (defendant’s foreman), who committed the trespass. Negligence alone is not sufficient to create liability in a case of this kind. If Perry * "x' * honestly believed * * "x' he was on the lands of defendant, he would not be liable for the trespass himself in treble damages, nor would the defendant in the case.”

This is claimed to be equivalent to saying that the plaintiff must produce that character of evidence, before the defendant would be liable under the statute.

The instruction of the court in this respect was correct, and in harmony with the previous decisions of this Court. Treble damages under this statute are in their nature punitory, and it cannot be assumed that they were designed to be inflicted in any case not involving something like willful wrong. Such damages cannot arise from mere neglect, but must come from active misconduct: Shepard v. Gates, 50 Mich. 498 ; Wallace v. Finch, 24 Mich. 255 -9. The court clearly put the burden upon the defendant to show that the trespass was casual or involuntary, as follows: Mr. Ball, for plaintiff:

“I ask your honor to charge the jury that the burden of proof is upon the defendant to show the trespass casual and involuntary, and not upon the plaintiff to show it was willful.”

By the court. “ That is so, gentlemen.”

The court also instructed the jury that the defendant was liable for the damage done to the land, if any, by cutting and removing the timber. As to the timber cut and not carried away, but left upon the land by the defendant, the court charged the jury that the defendant was liable only in case the plaintiff had no opportunity to sell or dispose of it. This is assigned as error.

From the evidence it appears that there was some correspondence between the parties in reference to the logs left upon the land. There was no particular dispute about the quantity cut. It is practically conceded on both sides that defendants cut and carried away about 6,500 feet, and left upon the land about 72,000 feet, of which some 18,000 feet *147 were not merchantable. Defendant wrote Horatio Seymour, Jr.,, who had plaintiffs interests in charge, making an offer for the logs, — 61,665 feet at four dollars per thousand; coupling said offer with the following condition ; “ This to cover the matter of trespass on section 17 in, full; we to have the logs, and permission to remove them.” Seymour, in behalf of plaintiff, replied that he was willing to take defendant’s estimate of the logs, but refused to take the amount offered in full settlement of the trespass, claiming willful negligence in defendant amounting to willful trespass; and stating that for $316.62 he would settle in full. Defendant then wrote, declining to take the logs, and made another offer to cover the damage to freehold and the value of the logs removed, amounting to fifty-four dollars, which last offer Seymour refused.

The court’s charge in full in relation to the logs cut but not removed, was as follows-;

“As to the question of damages, it appears that some of file timber, as I have said, had been removed, the rest remaining skidded upon the land. When Rood ascertained that the trespass had been committed, he then entered into negotiations, as I have said, to settle the matter and obtain the title to the timber. These negotiations did not result in a settlement. The defendant had no right to enter upon the lands to remove the timber that was cut down and skidded, because in so doing he would be guilty of a fresh trespass.

The plaintiff claims that he is liable for the value of the timber so removed from the realty and left upon the land in the manner indicated. The defendant claims that it was the duty of the plaintiff to dispose of the timber, if there was a chance to dispose of it and sell it, and that he cannot recover in damages for the value of the timber if such was the case.

I charge you, gentlemen, that if the plaintiff, after ascertaining that the timber was cut upon the land, had an •opportunity to dispose of it, — to sell it, — it was his duty to do so; and if lie did not do so, he cannot recover for the value of the timber that was cut and left upon the lands, or, at least, for the price at which he might have sold it. For illustration: If a man trespass upon another’s land, and cuts off 100 cords of wood, and piles it up, and before moving it ascertains that he has trespassed upon another’s land in .doing *148 so, and the owner of the land refuses to permit him to remove that wood, and refuses to sell it, he cannot recover for the value of that wood, provided he has a fair chance to sell and dispose of it.

Such is the. case with the timber in this case. It cannot be the law that although the defendant had done wrong, although it had committed a trespass, that the plaintiff can refuse to dispose of the property which has been cut, when it had an opportuity to do so, and then recover for its value of the defendant. Of course, if you find from the testimony that the plaintiff had no chance or opportunity to sell the timber so cut and skidded, then, of course, the defendant would be liable for its value.”

There was no evidence other than the correspondence between Seymour on the part of the plaintiff, and Rood on the part of the defendant, showing, or tending to show, any refusal on the plaintiff’s part to allow defendant to take away the logs cut. Neither was there any refusal to do so in the letters of Seymour. The defendant offered so much, in settlement of the whole claim for trespass, it to take the logs with permission to remove them. Plaintiff did not refuse such permission, but would not settle the trespass unless a larger sum of money was paid than defendant tendered by its letter.

Under these circumstances, it seems to us that the charge of the court was incorrect. The testimony further shows that after the negotiations for settlement were broken off, plaintiff tried to sell the logs, and could not. The logs were subsequently destroyed, or nearly so, by fire. The plaintiff was entitled to have these pine trees standing upon its land. They would have remained so had it not been for the trespass of the defendant. It would seem, upon natural principles, that the plaintiff ought to recover the value of the timber standing, — what it would have been worth if not cut down. If plaintiff had refused to let defendant take the logs away, it would have been different, — the value of the logs upon the ground might have then been deducted.

In Wood v. Elliott, 51 Mich. 320 , this Court decided that cutting the standing timber belonging to another, although the land belonged to the trespasser and the plaintiff only had *149 the right to the timber by removing it within a reasonable time, was a conversion, and the plaintiff was entitled to the actual value of the timber. The defendant in that case cut down the timber and converted it into wood. In mitigation -of damages, he pleaded that the wood belonged to the plaintiff. The circuit court instructed the jury that he was liable for the full value of the timber standing, and this Court sustained the charge. See, also, 2 Waterman, Tresp. § 1098; Sanderson v. Haverstick, 8 Penn. St. 294; Sampson v. Ham mond, 4 Cal. 184 ; Moody v. Whitney, 34 Me. 563 ; Indiana polis, P. & C. R. Co. v. Mustard, 34 Ind. 50 ; Champion v. Vincent, 20 Tex. 811 .

There was no evidence tending to show an election upon the part of plaintiff to keep the logs. The wood illustration was not supported by the evidence, yet the court said: “ Such ■is the case with the timber in this case,” thus virtually instructing the jury that plaintiff had refused to let defendant remove the logs. There is nothing in the record tending to show any such refusal.

For this error the judgment must be reversed, and a new trial granted, with costs of this Court.

Campbell, C. J., and Champlin, J., concurred.

How. Stat. § 7957. “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 he 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 bylaw.”