8 Wend. 505 | N.Y. Sup. Ct. | 1832
The plaintiff shewed sufiicient title to the logs in question; the defendant Wheeler gave him license to cut them on the land of the defendants, who were tenants in common of the land, and partners in the lumbering business. Though the defendants were partners, there is no partnership in real estate, 15 Johns. R. 160; the partners are tenants in common ; but I apprehend that tenants in common in timber land, who are also partners in the lumber business, are partners of the timber when converted into logs. In Martyn v. Knowllys, 8 T. R. 145, it was decided that no action lay in the nature of waste, by one tenant in common against another, for cutting down trees of a proper age and growth for being cut, and Lord Kenyon said: “ If one tenant in common were liable in such an action, it would have the effect of enabling him to prevent the other tenant in common taking the fair profits of their estates; in another form of action he might recover a moiety of the value of the trees that were cut.” This case decides that one tenant in common may cut trees proper to be cut, on the land held in tenancy in common, and the remedy of the co-tenant is in an action against the co-tenant cutting the timber, for his share of the value. If one tenant in common may cut himself, he may give license to another ; here the license was given in satisfaction of a fair demand against both tenants in common, and on that ground the plaintiff had title to the logs. But there is another ground, both defendants agreed before the timber was cut on the plaintiff’s land by the defendants, that if they did cut on the land of the plaintiff, he might cut as much on their land. The plaintiff has cut no more on the defendants’ land than they cut on his land. It is said that the plaintiff was concluded by accepting the timber assigned; but it cannot be doubted that it was competent for the defendant Wheeler to waive that acceptance, and the plaintiff’s claim to the logs rests on the agreement of both defendants.
Whether the evidence was sufficient to prove that Thompson was the servant of the defendants, was a question for the jury; but as there is a point in the case that the verdict is against the evidence, it is proper to say that there was enough to establish such relation. A. Eddy proves that Thompson was employed by the defendants in the year 1824; T. Eddy proves that Thompson got logs for defendants only one season, and that was in 1823, 4 or 5. The two witnesses prove the fact that Thompson brought the logs from Lake Champlain in 1824 for the defendants, and that they sawed them into boards and plank and sold them.
The only remaining enquiry is, whether the judge was correct in stating the rule of damages to the jury. The judge was right in saying that the rule of damages was a question of law; the jury are to ascertain the quantum of damages ac« icording to the rules of law. That the party whose property has been tortiously taken is entitled to the enhanced value, until it has been so changed as to alter the title, is a doctrine as old as the year books. In this court it has been held that the owner of timber may reclaim it when made into shingles, 5 Johns. R. 348,9, and the law in England is stated to go much further: that whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials—as leather made into shoes, cloth into a coat, trees squared into timber. In Curtis v. Groat, 7 Johns. R. 168, this principle was applied to wood converted into coal; the court say, “ The defendant’s timber, by being cut and converted into coal, had indeed lost its primitive form, but the identity of the original material was here ascertained or admitted.” In Babcock v. Gill, 10 Johns. R. 237, it was applied to pearl ashes made out of black salts ; and Brown v. Sax, 7 Cowen, 95, was just like this case, except that there the logs were cut on the plaintiff’s land. Here the title to the logs was in the plaintiff, though they were cut on the defendant’s land.
New trial denied.
