83 P. 771 | Idaho | 1905
— This complaint alleges that the defendants — respondents—are husband and wife; that defendant — appellant—is a private corporation under authority of the state of Washington; that plaintiffs are the owners of certain lands in Kootenai county, which is community property, and that they are in possession of such lands. That the defendant, at divers and sundry times within the past twelve months, wrongfully, unlawfully and willfully, without any title or authority so to do, entered upon said lands above described, cut and removed therefrom and off of said lands quantities of valuable timber then and there growing upon said lands and belonging to and being the property of the plaintiffs, with full knowledge of the ownership of said lands and timber by plaintiffs, and full knowledge of the fact that defendant had no right or title to said lands or timber or any authority to enter upon said lands or cut or remove any of said timber therefrom. Then follows an estimate of the
The bill of sale attached to and made a part of the affirmative answer as exhibit “A” is in the usual form and purport to convey “all of the growing, standing and down timber suitable for sawing or milling purposes, down to a size of ten inches in diameter, sixteen feet from the ground; all other timber to be left and remain on the lands. ’ ’ The consideration named is $350. On these issues the case was tried with a jury, and a verdict for one thousand dollars damages
The record contains eleven assignments of error occurring at the trial, and specifies six reasons why the evidence is insufficient to justify the verdict. The first six assignments of alleged error occurring at the trial relate to the admission and rejection of evidence,' and may be disposed of later if considered necessary to a final disposition of the case in this court. The seventh assignment is based on the refusal of the court to sustain a motion for nonsuit. It is shown by the record that on the trial before any evidence was taken, plaintiffs waived claim for treble damages, and there does not appear to have been any objection to such waiver on behalf of appellant. The motion for nonsuit is as follows: “Now comes the defendant in the above-entitled cause, and moves the court for a nonsuit for the following reasons, to wit: 1. That the complaint of the plaintiffs herein is based upon section 4531 of the .Revised Statutes of Idaho, which is a penal statute, and this action being brought upon said statute, a purely statutory remedy is sought to be enforced; 2. That plaintiffs in open court have expressly waived their right to rely upon this statutory remedy, and by waiving that remedy their complaint does not state a cause of action, and there is no longer any issue of law or fact to be determined by the court or jury.” The section of the statute above referred to is as follows: “Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles, or otherwise injures any trees or timber on the land of another person, or on the street or highway in front of any person’s house, village, or city lot, or cultivated ground; or on the common or public grounds of or in any city or town; or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any court having jurisdiction.”
Counsel for appellant in his brief states: “The complaint being in express language, based upon a penal statute, the fact that plaintiffs at the opening of the trial waived treble damages would not entitle them to judgment without amending their complaint.” We cannot give our assent to this contention. The complaint informed the defendant of the demand for actual damages, then asked that the amount so found should be trebled under the statutes. Before the trial this latter demand was waived. How could this waiver result in injury or in any way prejudice the rights of or mislead the defendant in the trial of the action? The complaint had been accepted as sufficient by the defendant as no demurrer seems to have been filed. It met the issue presented by the plaintiffs in their complaint by denying title in plaintiffs prejudicial to the defendant’s right to cut and remove the timber of a certain size from the land in eon
The next question we will consider is the rights of appellant, if any, under the bill of sale from the North Idaho Land Company Limited. It will be remembered that , the Northern Pacific Railway Company was the owner in fee of the land in dispute, and on the thirteenth day of May, 1897, contracted to sell the same with certain restrictions and conditions, to one John Lockhart. Thereafter, and on the first day of December, 1899, said Lockhart, by and with the approvel of Thomas Cooper, who signs himself Western Land Agent, evidently of the Northern Pacific Railway Company, for a consideration of $60.10, assigned all of his right, title, interest and claim in and to the North Idaho Land Company, Limited. This assignment is acknowledged on the eleventh day of February, 1902. The North Idaho Land Company, Limited, for a consideration of $300, assigned its contract of purchase of the land in dispute to Lucy J. Gumaer with all its rights, title, interest and claim, to said land. This assignment is acknowledged. Afterward, and on the fifteenth day of December, 1902, an assignment from the same party to Mrs. Gumaer, same consideration and conditions, was acknowledged and is a part of the record before us.
It is urged that the verdict of the jury is excessive. The plaintiffs ask for damages in excess of $5,000, and the jury returned a verdict for $1,000 — less than one-fifth of the demand. We have no way of ascertaining how the jury reached its conclusion. It is sufficient to say that evidence was introduced amply supporting the verdict, and, as has been so frequently said by this court, where there is evidence to support the verdict or there is a substantial conflict, the
Other assignments are urged by counsel for appellant as to the admission and rejection of evidence and the giving and refusal to give certain instructions. We are not furnished with all the instructions given by the court, and hence cannot determine whether appellant’s requests should have been given or not. It is presumed that the court fully and fairly instructed the jury on all the issues involved, and unless the record shows the instructions as given by the court, we cannot know whether error was committed or not. If the court gave the instructions covering all the issues, but in different language, it was not error to refuse these requests. In so far as the assignments of error are based upon the refusal of the court to permit certain questions to be answered, in our view of the case they were properly rejected, as the only question to be determined was: What, if any, was the damage sustained by the plaintiffs in cutting and removing the timber and breaking down the fence and permitting the destruction of the apple trees? These questions were all fairly before the jury and they determined the questions by their verdict, and we think it is sustained by the evidence. The judgment is affirmed, with costs to respondents.