54 N.H. 490 | N.H. | 1874
The gist of the- action of trespass guare clausum fregit is the disturbance of the possession. Whatever is done after the breaking and entering is lield to be but aggravation of damages.
It may be assumed, although it is not stated in the case, that the court instructed the jury that the plaintiff was entitled (as he manifestly was) to recover for the injury, if any, which was done to 1ns soil, as well as “ the value of the timber after it was cut and made ready to be hauled off the land.” It is to be inferred that the court
The defendant having wrongfully cut and trimmed the plaintiff’s trees, and it being impossible to separate the original property in them from the value subsequently added, it is unnecessary to cite authorities to show that the plaintiff, after they were cut and trimmed, remained the owner of the timber made from them, free from any lien or claim of the defendant for his labor, and that he might therefore have lawfully taken it peaceably into his possession. It is only where the identity of the original material has been destroyed, or where its value is insignificant compared with the value of the article manufactured from it or to which it has been annexed, that the law is otherwise. Wetherbee v. Green, 22 Mich. 311 (7 Am. Rep. 653). The plaintiff might also have maintained replevin for the timber — Davis v. Easley, 13 Ill. 192, Wingate v. Smith, 20 Me. 287; or he might, according to numerous authorities, have recovered its full value at the time it was carried away by bringing trover — Brown v. Sax, 7 Cow. 95, Baker v. Wheeler, 8 Wend. 505, Rice v. Hollenbeck, 19 Barb. 664, Grant v. Smith, 26 Mich. 201, Ellis v. Wire, 33 Ind. 127 (5 Am. Rep. 189); and according to the doctrine of Adams v. Blodgett, 47 N. H. 219, he might have elected any day prior to the date of his writ as the time of the conversion. Perhaps the same result might as well have been reached in trespass de bonis asportatis; but the difficulty of allowing the original taking to be abandoned and a later/one adopted has probably been thought greater in that form of action than in trover, although judges have sometimes taken a different view. “ It would be absurd to say that the original owner may retake the thing by an action of replevin in an improved state, and yet that he may not, if put to his action of trespass or trover, recover its improved value in damages ” — Ruggles, J., in Silsbury v. Mc Coon, 3 N. Y. 384; but in Cushing v. Longfellow, 26 Me. 306, the plaintiff waived the breaking and entering and the cutting, and sued in trespass for taking, carrying away, and
In Moody v. Whitney, 38 Me. 177, which was trover for mill-logs cut upon the plaintiffs'land by the defendant, and hauled by him two or three miles, the same measure of damages was, however, adopted, it being held that the plaintiff could not recover the enhanced value of the logs without evidence of a distinct conversion after they were hauled, as if the plaintiff had regained possession, and there had been a subsequent conversion by the defendant; or, perhaps, if he had not regained the possession, but there had been a subsequent demand and refusal, upon the ground that, where a party without authority mingles his labor with the lumber of another, “ if the party who would be entitled to the whole of the mixture makes no attempt to obtain the whole, but resorts to his action of trover, the damages would be, not the value of all that which he might lawfully take, but only of that which was first wrongfully converted by the act of mingling.”
According to the cases last cited, the present plaintiff, even if he had brought trover, would have been entitled to recover “the value of the timber after it was cut,” but not (as the court instructed the jury) after it was “ made ready to be hauled off the land.” A similar doctrine was applied in Weymouth v. C. & N. W. R. Co., 17 Wis. 567, which was trover against the defendant, who had by mistake taken the plaintiff’s wood at Farmington, and carried it to Janesville and there mingled it with other wood, so that it could not be identified, — the court holding that the plaintiff, who had demanded the wood at Janesville, could not recover its value with the cost of transportation added; but in that case the wood was not cut by the defendant on the plaintiff’s land.
If a plaintiff in trover, whose trees have been cut and increased in value by a trespasser, may recover their value at any time he may elect to treat as the time of their conversion, or even their value the moment after they are severed from the soil, he may sometimes recover more than the actual injury he receives ; but it is because such a result is incidental to the adoption of that form of action, while in the present case the form of action adopted by the plaintiff presents no obstacle to giving him the actual damage he has suffered by the commission of the trespass alleged in his declaration, and no more.
The reported cases on the subject of damages in trespass quare clausum fregit, where the defendant has without authority severed minerals or timber and removed them from the plaintiff’s land, are far from uniform. Martin v. Porter, 5 M. & W. 351, Wild v. Holt, 9 M. & W. 672, Morgan v. Powell, 3 Q. B. 278 (43 E. C. L. 734), Maye v. Tappan, 23 Cal. 306, and Goller v. Fett, 30 Cal. 481, were actions of that form. The first three were for mining coal and carrying it away; and the decision was, that the owner of the land in such a case is
But in Wood v. Morewood, 8 Q. B. 440 (43 E. C. L. 810), Baron Parke ruled that, even in trover for coal mined by the defendant upon the plaintiff’s land, if the defendant u acted fairly and honest]jr, in the full belief that he had a right to do what he did, they [the jury] might give the fair value of the coals, as if the coal-fields had been purchased from the plaintiff;” and in Forsyth v. Wells, 41 Pa. St. 295, which was trover for coal mined by mistake, Lowrie, C. J., said that the rule of damages adopted in Martin v. Porter and other like cases “ does not truly mete out just compensation;” and it was held by a majority of the court that the defendant “ ought not to have been charged with the value of the coal after he had been at tbe expense of mining it, but only with its value in place and such other damage to the land as his mining may have caused ;” but this view' is criticized by Strong, J., in an opinion of the same court in Lyon v. Gormley, 58 Pa. St. 261. Whether such a rule of damages can be sustained in trover seems more than questionable, although it has been commended by a high authority as “the just rule.” Sedg. Meas. Dam. (4th ed.) 629 [537], note 1. It would be hard to suppose that the plaintiff lost his coal, and that the defendant found and converted it while it remained a part of the realty, to say nothiug of giving “ other damage to the land” in an action of trover for converting personal property. But we are of the opinion that where there is nothing in the form of action adopted which renders this an inconsistent rule of damages, it presents substantially the correct rule. It seems well adapted to actions of trespass, for entering land and severing and removing minerals or timber from it, and has been often applied in such actions.
United States v. Magoon, 3 McLean 171, was trespass for entering upon lands of the United States and digging and carrying away ore. “ The plaintiffs contended that they were entitled to the value of the ore after it was dug; but the court instructed the jury that that was not the measure of damages, but the injury done to the soil by the trespass; that the digging and carrying away by the same person is presumed to be a continuous act, and the lead ore removed must be considered an aggravation of trespass upon the soil.” This instruction was not excepted to.
Longfellow v. Quimby, 33 Me. 457, was trespass for a breach of the plaintiff’s close, and cutting and carrying away trees. The plaintiff was held to be entitled to recover for the value of the trees, and for the injury occasioned by cutting them prematurely, and for the injury done to the land.
Chipman v. Hibberd, 6 Cal. 162, the case states, was an “ action for damages for cutting down growing trees.” The measure of damages was held to be, not “ the actual value of the trees for firewood, but the damage done to the laud by reason of destroying them,” — to be “ estimated by all the circumstances and the purposes for which the trees were used or designed.”
If the owner of' timber, cut upon his land by a trespasser, gets possession of it increased in value, he has the benefit of the increased value. The law neither divests him of liis property, nor requires him to pay for improvements made without his authority. Perhaps.in trover, and possibly in trespass de bonis asportatis, he may be entitled to the same benefit. Rut we see no occasion for giving it to him where he brings his suit for the whole trespass of breaking and entering his close aud cutting down and carrying away his trees as a continuous act. The plaintiff is entitled to be compensated according to the magnitude of his loss. The defendant ought only to be liable to compensate him according to the magnitude of his loss. The inquiry should be, How much was the plaintiff injured by the breaking and entering of his close, and the cutting down and carrying away of his trees ? The true measure of damages is the amount of injury which the plaintiff has actually suffered from the whole trespass. If the trees were worth no more to the plaintiff to stand than to the defendant to be cut into timber at that time, their value as timber, with the reasonable expense of cutting deducted, was the measure of the injury which was done to the plaintiff by cutting them. This is not the rule of damages which was adopted by the court. The instruction to the jury was erroneous, because it allowed the plaintiff' to recover a verdict which included the value added to the timber by the defendant’s labor.
The instruction given, unless it was assented to by the plaintiff', as it doubtless was in this instance, was clearly liable to a valid exception by him. His trees may have been prematurely cut: they may have been ornamental trees or fruit-trees: the value after they were severed from the soil may have been but a small part of the real injury from cutting and removing them. “ The trees considered as timber may, from their youth, be valueless, and so the injury done to the plaintiff by the trespass would be but imperfectly compensated, unless
Adams v. Blodgett, 47 N. H. 219, may seem to be in conflict with the result we have reached, but it is not. That action, as it is described in the statement of facts, was trespass for breaking and entering the plaintiff’s close and carrying away trees and bark. An examination of the reserved case shows that the writ did not charge the defendant with cutting the trees, as is inadvertently stated in the first paragraph of the opinion of the court. That the defendant peeled the bark is stated in the case, but whether he cut the trees or not does not appear. Whether he did one or both, the plaintiff did not allege either in her declaration, but declared as if the defendant had only broken and entered her close and carried away her personal property found there. No question which was there decided arises in the present case.
The defendant is entitled to a new trial upon the question of damages, but not upon the question of title. Lisbon v. Lyman, 49 N. H. 553.
New trial as to damages.