103 Mich. 38 | Mich. | 1894
Plaintiffs, having brought proceedings against defendant to recover possession of certain premises, resulting in a judgment of ouster, affirmed by this Court (94 Mich. 474), now bring trespass on the case, under
Plaintiffs insist that they are entitled, under the statute,, as a matter of right, to treble damages, notwithstanding; the special finding as to defendant’s good faith. We have; a number of statutes conferring the right to double or treble damages. By the terms of certain of them, the act done must be willful; others, after giving the right in general terms, provide that if it appear that the act was casual cr involuntary, single damages only are recoverable; while others provide in general terms' for the recovery, and do not in express terms make such recovery dependent upon the willfulness of the act, or except instances of casual or involuntary conduct, The statute in question here belongs to the latter class, and is as follows:
“ The complainant obtaining restitution of any premises under the provisions of this chapter shall be entitled to an action of trespass or trespass on the case against the defendant, and may recover treble damages from the time of the forcible entry or forcible detainer, or of the notice to quit or demand of possession, as the case may be, and all other damages to which he may be entitled.”
A number of cases involving the construction of other statutory provisions relative to increased damages have been before this Court. Wallace v. Finch, 24 Mich. 255; Russell v. Myers, 32 Id. 522; Michigan Land & Iron Co. v. Deer Lake Co., 60 Id. 143; Elliott v. Herz, 29 Id. 202; Shepard v. Gates, 50 Id. 495; Kilgannon v. Jenkinson, 57 Id. 325. The first three cases arose under How. Stat. § 7957, relating to cutting or carrying away or injury to its
Our own case of Elliott v. Herz arose under How. Stat. § 2119, which provides that the owner of any dog which shall have killed any sheep shall be liable in double damages, and it was held that the statute did not apply to a case of damage done by a rabid dog. Shepard v. Gates was brought under How. Stat. § 1406, which provides that whoever shall injure any bridge or any public road shall be liable in treble damages to the township. The Court held that, if defendant made the cut in the road under the proper statutory authority, the cut was no trespass, and, if the bridge over the cut was remodeled to the satisfaction of the highway commissioner, such an act could not be regarded as a trespass. Both of these cases come within the well-established rule applied to such statutes, that whatever is within the mischief intended to be remedied is considered as within the statute, though not within the letter thereof, and whatever is not within the mischief is not considered within the statute though within the letter.
Kilgannon v. Jenkinson was brought under section 7959, which provides that if any person shall be ejected or put out of any lands in a forcible and unlawful manner, or, being put out, be afterwards kept out by force, he shall be entitled to recover treble damages. A dispute arose as to the boundary line. Plaintiff erected a fence, and defendant tore it down. The case was reversed on other grounds, and no point was made or discussed in the briefs as to plaintiff’s right to treble damages. What the Court evidently meant by the suggestion was that the act complained of was a mere naked trespass, and not such a forcible ouster as to bring the case within the statute, under the rule adopted in Shaw v. Hoffman, 25 Mich. 162.
“We are not at liberty,” say the court in Alexander v. Worthington, 5 Md. 485, “to imagine an intent, and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting and remodeling with the view of making the letter express an intent which the statute in its native form does not evidence.”
It is only in cases where the language is capable of two meanings, or where, by giving it its literal interpretation, the statute will be inconsistent or ambiguous, that courts resort to the secondary rules of construction to aid in determining the real intention of the legislature. 23 Am. & Eng. Enc. Law, 305; Bidwell v. Whitaker, 1 Mich. 469. Courts cannot except special cases which fall within the mischief of such statutes, and are within the scope of the general terms used. The cases of forcible entry or detainer or of holding over in which no claim of right is made are exceptional, and to hold that the language of this section applies only to exceptional cases arising under the act would be to import something into the statute which is at variance with its evident meaning.
In the case of Hogsett v. Ellis, 17 Mich. 351, 370, this Court recognized the liability of a tenant holding over after notice to quit, or demand of possession, to treble damages under the statute in question. In Shaw v. Hoffman, 25 Mich. 170, the Court intimate that upon a judgment of guilty under section 7959 plaintiff would have been entitled to treble damages as a matter of right. In Howser v. Melcher, 40 Mich. 185, and Hitchcock v. Pratt, 51 Id. 263, the question before the Court was the proper measure of damages under the general term, “all other damages,” used in the section under consideration.
Robinson v. Kinne, 1 Thomp. & C. 60, was an action under a statute allowing treble damages for waste. • The
CiWe do not see that it was at all material to the case that the defendant claimed to own by another title that portion of the lands on which certain of the trees were cut, and which cutting was found to be waste. The statute in regard to waste does not excuse the defendant from treble damages because he has good reason to believe the land to be his own. The question was whether the locus in quo was in point of fact a part of the dower lands, or whether the defendant was estopped from denying that they were such.”
The case was afterwards taken to the court of appeals, and the rule laid down in the supreme court was approved. 70 N. Y. 147.
The history of this chapter and of this provision fortifies us in the conclusion reached. Sections 1-5, inclusive, of the territorial act of 1828 entitled “ An act to prevent forcible entries and detainers,” authorized an arrest, a fine, a judgment of restitution, and the recovery of treble damages in an action of trespass. Section 6 of the same act provides that when any person shall willfully and with force hold over, or when any person wrongfully and without force by disseisin shall obtain and continue in possession of any lands, and after demand for possession shall refuse or neglect to quit possession, the owner may have restitution. Section 8 provides that the complainant shall be entitled to an action of trespass and to treble damages. 2 Terr. Laws, 660. In 1830 an amendment provided that when any person shall hold over after the time for which demised, or contrary to the conditions of the lease, or after any rent shall have become due and shall remain unpaid for 20 days, if demand for possession shall have been made, and the tenant shall neglect or refuse for the
The only other complaint relates to a question of interest. The jury assessed the plaintiffs5 damages at $1,669.62, and in answer to a special question as to what amount they found to be the damages of the plaintiffs for being deprived of, the revenues which might have accrued to them if said defendant had not retained possession, they fixed the sum at $156.54. The court entered judgment for single damages only, and struck out the item of interest. In this, we think, the court erred. eIt appears that the defendant, prior to the notice to quit, had been paying a rental of $780 per year in monthly installments, and that rate was agreed upon as the basis of recovery. There is no good reason why, in determining the damages to which plaintiffs are entitled, the element of interest upon installments of rent from the time they became due and payable under the terms of the agreement, which is taken as the basis of recovery here, should not be considered by the jury. Clearly, any computation which would put
The judgment will be reversed, and a judgment entered here for treble damages, with interest from the date of the verdict below.