43 N.Y.S. 115 | N.Y. App. Div. | 1897
Unless the tax title to the thirty acres, upon which the defendants rely, is good, the plaintiffs established title in themselves to the whole of lot 63, containing 589 acres and not subdivided. It includes the 30 acres in question upon which the defendants cut down the trees .and removed 400 logs cut therefrom. The plaintiffs deduce their title by successive conveyances, beginning with a grant from the State in 1816. The land is mountain woodland, in Greene county, and has never been inclosed. It is objected that title was- not shown to be in the State in 1816. The grant from the State as sovereign proprietor is sufficient evidence of its title in the absence of evidence that, prior to the grant, the title of the State had in some way been' divested. (Wendell v. Jackson ex dem. The People, 8 Wend. 183; People v. Denison, 17 id. 312; People v. The Rector, etc., of Trinity Church, 22 N. Y. 44.) Hó such evidence was given, and thus plaintiffs showed title in themselves.
If - we assume, as I think we may, from the Comptroller’s certificate and entry, that the Comptroller gave a deed in 1863 to Maurice E. Viele, we must assume that it was of the land sold (Chap. 427, Laws of 1855, § 63; R. S. [9th ed.] 2151), namely, “ the following lot of land situate in the county of Greene, S. E., thirty acres, to be laid out at the expense of the purchaser, namely, State Land Tract, Lot .63, 134 a.” Lot 63 contained 589 acres. Where were the 134 acres of which the southeast, thirty were sold ? We may assume, I think, from the official entry in the Comptroller’s
The assessment roll of the town of Hunter for 1855 of non-resident-lands is, in the proper columns and under the proper captions, as-follows: “ State Land Tract, Lot Ho. 63, 134 acres, 134 (dollars), 99-(cents).” The statute requires that the Comptroller’s certificate of sale “shall describe the lands purchased.” (Chap. 427, Laws of 1855, § 66, subd. 3; R. S. [9th ed.] 2152.) “When the line between-two towns * * * divides a farm or lot, * ' * * if unoccupied, each part shall be assessed in the town in which the same shall lie.” (1 R. S. 389, § 4; practically unchanged in this respect, R. S. [9th ed.] 1681.) And where a part only of the whole tract is-liable to taxation, “ that part or the part not liable must be particularly described.” (1 R. S. 391, § 13, subd. 3 .; R. S. [9th ed.] 1684.)-
The assessment did not particularly describe the part of lot 63-liable to be taxed in the town of Hunter. (Zink v. McManus, 121 N. Y. 259, and cases cited.) The description in the Comptroller’s-certificate is still more vague, for it is an imperfectly described part of an imperfectly described part of lot 63. The additional particulars in the deed from the Comptroller do not supply the particulars necessary to locate the thirty acres. The defendants, therefore.
The referee allowed the plaintiffs forty-five cents each for 400 ' logs which the defendants carried away, that being, as he found, their value as they lay upon the premises. He found that, apart from the value of the logs, the damages to the premises were nominal. He also found that the defendants had probable cause to believe that the land belonged to them. The defendants claim that this recovery embraces the additional value which the defendants by cutting and ether labor imparted to the logs — about ten cents each log — and that the true measure of damages, where the defendants have acted in good faith, is the value of the trees standing on the land, or the difference in the value of the land before and after the cutting, as the one or the other measure under the circumstances best affords the plaintiffs full compensation.
As, apart from the value of the trees cut, no damage was done to the freehold, and as the defendants acted in good faith, we think the "true measure of damages is the value of the trees as standing trees, and not their value as logs-. (Dwight v. Elmira, C. & N. R. R. Co., 132 N. Y. 199.) The rule is thus stated in Wooden Ware Co. v. United States (106 U. S. 434); “ Where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property, when first taken, must govern; or, if the conversion sued for was after value had been' added to. it by the work of the ■defendant, he should be credited with this addition.” Forty dollars should be deducted from the recovery.
The judgment should be modified by deducting forty dollars from the recovery as of the date of its entry, and as so modified affirmed, with costs.
All concurred.
Judgment modified by deducting forty dollars from the recovery as of date of entry of judgment, and as so modified affirmed, with •costs.