McCloskey v. Powell
21 A. 148
Pa.
1891
Check Treatment

NO. 32.

Opinion,

Me. Justice Williams:

This case was here in 1888 on the appeal of the plaintiffs, and it is reported in 123 Pa. 62. It was again tried in the court below, and resulted in a verdict in favor of the plaintiffs. It is now here on the appeal of the defendant, and the same question raised in 1888 is once more before us.

An effort was made on the trial to raise another question, and to defeat a recovery by Hodge, the present owner of the claim in suit, on the ground that he bought it for Scatcherd & Son, and with their money. The jury found that he bought for himself, and with his own money. The alleged facts, on which his right to recover as owner of the claim was denied, have fallen out of the case, therefore, and the legal question has gone with them. We have remaining only the question which was decided in 1888. What was that question?

An examination of the case as reported in 123 Pa. 66, will show that, on the trial in the court below, the plaintiffs requested the court to instruct the jury as follows :

*396“ If tbe jury believe from tbe evidence that tbe defendant, Powell, procured tbe west line of bis lands to be so run and marked as to include some two hundred and sixty acres of land belonging to tbe plaintiffs, and caused the bard-wood timber on bis said lands to be estimated up to said line, and caused said line, so run and marked, to be pointed out as bis line to J. H. Ryder, acting for Scatcherd & Son, to whom be, Powell, had sold said bard-wood timber, and that said purchasers accordingly, by reason of said acts of Powell, cut tbe timber up to said line, and paid him tbe stumpage for tbe timber so cut on plaintiffs’ land, or any portion of it, be, Powell, would be liable to tbe plaintiffs as a co-trespasser with tbe party or parties who actually cut tbe timber.”

The court declined so to charge, and said, in substance, that as Powell neither cut the trees down with bis own hands, nor paid the wages of those who did, be was not liable under tbe provisions of tbe act of 1824. This instruction was assigned for error, and raised the question in tbe case. Tbe point predicated Powell’s liability, not of tbe illegal acts of his vendees, but of bis own illegal acts by which be became a trespasser. These acts, as grouped in tbe point, were four in number, and may be separately stated as follows:

1. That be procured his west line to be so run and marked as to include two hundred and sixty acres of tbe plaintiffs’ land. This was a breach of tbe plaintiffs’ close, a trespass.

2. That be caused tbe trees thus wrongfully enclosed to be counted, and their contents estimated as belonging to him. This was an assertion of ownership of tbe trees belonging to plaintiffs.

3. That be caused tbe line so run to be pointed out to tbe agent of Scatcherd & Son as bis true line. This was an assertion that they might lawfully enter upon tbe land under his authority.

4. That be sold tbe timber so enclosed and estimated to Scatcherd & Son by the thousand feet, board measure, and took bis pay for it. This was a clear and distinct authority to Scatcherd & Son to cut down tbe trees and take them away.

Tbe point asked, if tbe jury should find from tbe evidence that tbe acts enumerated bad been done by Powell, and if they should further find that Scatcherd & Son cut and removed tbe *397timber “by reason of said acts of Powell,” then the court should instruct them, as matter of law, that he was liable as a co-trespasser. This was the question before us on the plaintiffs’ appeal in 1888, and the only question. We held, reversing the court below, that upon the facts assumed in the point the plaintiffs were entitled to the instruction asked for as to their legal effect. The case went back for another trial, which has now been had, and which has resulted in a verdict in favor of the plaintiffs. The defendant appeals, and assigns as error the answer of the court below to the same point, given in accordance with our decision in 128 Pa. 62. We are asked, and are quite willing, to examine and determine this question as an original one. The question is, are the acts enumerated in the point sufficient to make him who does them a principal in the trespass of cutting and removing the trees ?

It is the doctrine of the common law that every party to a trespass, whether contributing to the physical force employed or not, is liable to an action of trespass; and the reason given is, because there can be no accessory in trespass, and therefore all who aid, abet, counsel, direct, or encourage are liable as principals: 9 Bac. Abr., 492; The same rule prevails in this country. It is stated in Coats v. Darby, 2 N. Y. 517, in these words: “ All who aid, command, advise, or countenance the commission of a trespass by another are liable as if they had committed the tort with their own hands.” In Moak’s Under-hill on Torts, 567, the result of the cases is said to be that the plaintiff is entitled to recover if the evidence shows that the defendant took part in the trespass personally, or that he authorized it. It is not necessary that the authority should be given by the defendant in person; it is enough if it be given by his attorney: Gillingham v. Clark, 1 Phila. 51. The basis of liability is well stated in Green v. Kennedy, 46 Barb. 16, thus: “ The direction, suggestion, or encouragement that is given, is adjudged to be part of the act itself,” done under such direction, suggestion, or encouragement. Much stronger than the cases now referred to are those that hold that one may become liable for a trespass committed without his knowledge, if he agrees to it and is benefited by it. Such cases are abundant where a landlord is proceeded against for the act of his bailiff; a sheriff or constable, for the act of his deputy; a prin*398cipal, for tbe act of bis agent. Thus, not only accessories before the fact, but accessories after the fact, who are benefited by or in whose interest the act has been done, are liable as principals.

It is urged that, while the rule may be as stated in all actions for tort, yet a different rule must be applied when the plaintiff declares under the act of 1824. But the act of 1824 does not give a new action, but a statutory measure of damages “ to be recovered with costs of suit by action of trespass or trover, as the case may be.” This action is trespass quare clausum, in which the plaintiffs have declared for double or treble value of the trees as their measure of damages, instead of single value with interest. The trespass complained of is an entry upon the lands belonging to the plaintiffs, and the cutting and removal of their timber trees growing thereon, without their consent. The defendant does not deny that the plaintiffs’ close has been entered, nor that the timber trees growing there have been cut and removed without their consent. The only question raised is, who is liable for this admitted trespass ? The laborers whose blows felled the trees are liable. Ryder, who hired the laborers and superintended their work, is liable, because he directed the work to be done. Scatcherd & Son, who never saw either the trees or the laborers who felled them, are liable, because Ryder represented them as their agent, and qui facit per alium facit per se. So far, both parties are agreed. The plaintiffs propose to go to the top of this series of connected acts, and hold Powell also liable, because, asserting that they were his own, he sold the timber trees that have been cut and removed to Scatcherd & Son, and distinctly authorized their removal from the land.

To this the defendant objects. His position is that the law of 1824 prescribes against the act of cutting any timber trees, and that of employing any person to cut or fell such trees; that, as a penal law, it must be strictly construed; and that, as he neither wielded the axe, nor paid the wages of those who did, he is not liable. This would be a very strict construction, indeed; so strict and narrow that the criminal courts would not adopt it even in favor of human life. It is well settled that he who counsels, directs, or authorizes the commission of murder is guilty of the crime, equally with him by whom the *399fatal blow was delivered. The direction is adjudged to be part of the act itself, and to incur the same degree of guilt, if the act be criminal, and the same degree of civil responsibility, if the act be a trespass merely. If one should go to his neighbor’s stable, representing it to be his own, sell the horses standing there, take the price, and require the purchaser to remove the horses within a fixed time, whatever might bo said about the criminal character of his conduct, no one would doubt his liability in trespass for the removal of the horses. His sale of them as his own, to be removed, is a clear and direct authority for the act of removal by his vendee, which makes him a principal in the trespass. If, instead of going to his neighbor’s stable, he should go to his timber land, and point out a tree or a grove of trees as his own, estimate the contents of the tree or trees, board measure, sell them, take the price, and require them to be removed within a fixed time under penalty of loss of the price paid, such sale is as clear an authority to cut and remove the trees as it would be possible to devise; and the subsequent removal of them by the purchaser, in consequence of such purchase, would support an action against the seller, not because of the act of his vendee merely, but because of his own acts connecting him with the trespass. We are fully satisfied, after a careful re-examination of the whole subject, that upon the facts embodied in the point the law was correctly given to the jury upon the last trial, and that the error assigned thereto is not sustained.

Much was said upon the argument of this case about the hardship of holding a vendor liable for the unauthorized acts of his vendee. It is enough to say that no such question was before this court in 1888, and no such question is presented now. We have no doubt that an owner who sells his tract by its official description, or its adjoiners, could not be held liable because his vendee might cut over the lines. The vendee must take notice of the lines, and fix their location at his peril. If there are interfering surveys, and one or more of the lines be involved in dispute, the purchaser takes the dispute with the tract, and must wait until it is settled, or be liable in trespass if he gets over the lines. This case presents no such features. The point assumed that the defendant procured a line to be run and marked to enclose his neighbor’s trees. Whether *400be was misled by his surveyor, or mistook the fine, is not important. The fact is that by his positive acts-, as assumed and now found by the jury, he misled his vendee. He sold his neighbor’s trees as his own, took pay for them, and authorized and required their removal within a fixed time. He cut the trees by means of his sale of them to be cut. His direction and authorization of the act of his vendees is adjudged part of the act itself, and makes him, equally with those whom he directed and authorized, a trespasser.

The judgment is affirmed.

NO. 165.

OpiNion,

Me. Justice Williams :

This appeal, and that of Powell, which we have disposed of by an opinion filed herewith, are from the same judgment. The plaintiffs complain of the ruling of the learned judge of the court below upon the subject of interest. The jury found the valué of the timber trees, and computed interest thereon at $641.88. The court directed judgment to be entered for three times the value of the timber, and excluded the interest therefrom. The precise point was ruled in Dunbar Fur. Co. v. Fairchild, 121 Pa. 568, and is clear upon principle. The treble damages are given as a penalty, and we know of no case in which a penalty bears interest until the plaintiff’s right to it has been settled by judgment. The learned judge of the court below was right, therefore, in excluding the interest, and entering the judgment for three times the single value of the trees cut and carried away.

The judgment is affirmed.