14 Ga. App. 153 | Ga. Ct. App. | 1914
This was an action to recover damages for trespass in boxing and working for turpentine purposes pine timber on lands claimed by the plaintiffs. The petition was dismissed on demurrer, and they excepted. Two questions are raised by the demurrer: (1) whether the deed under which the plaintiffs claimed conveyed to them title to the premises in dispute; and (2) whether the mere execution of a lease or deed to turpentine ¡orivileges on .land makes the lessor or grantor such a joint trespasser With those who enter upon the land under authority of the instrument as to authorize a joint suit against the lessor and those actually committing the trespass, in the county in which the latter reside.
The point has been expressly decided by other courts. In the English case of Leame v. Bray, 3 East, 595, Lord Ellenborough held that the maker of the instrument might be sued in trespass, because “he is the causa causans, the prime mover of the damage to the plaintiff.” Other decisions follow this doctrine and hold the maker liable in trespass with the actual perpetrator, upon the theory that the maker has put in motion the thing which subsequently induced the party to commit the trespass. The execution of the conveyance amounts to an assertion of the maker’s right to use the property, and is equivalent to counseling and directing the grantee or lessee to commit the trespass. In Dreyer v. Ming, 23 Mo. 434, it was held that where A, claiming to own land belonging to B, sold timber on the land to C, who cut and removed it, A was liable to B, as principal trespasser, for the value of the timber .cut and taken away by C. In London v. Bear, 84 N. C. 266, it was held that trespass would lie against both the lessor and the lessee, though the lessor did not participate in the trespass otherwise than by executing the lease. See also: Wall v. Osborne, 12 Wend. (N. Y.) 40; Sanborn v. Sturtivant, 17 Minn. 200; Meehan v. Edwards (Ky.) 19 S. W. 179. In the present case it is alleged that one of the defendants executed the lease or license to the other defendants to commit the trespass for which damages are claimed. This was equivalent to counseling or directing the trespass, and. all who concurred in it were jointly liable and subject to be sued in the county of the residence of either.
The court erred in sustaining the demurrer.
Judgment reversed.