| Miss. | Apr 15, 1876
delivered the opinion of the court.
The declaration contains two counts. The 1st count is^for The statutory penalty of $15 per tree, for cutting down and carrying away 1,500 cypress trees without the consent of the owner. The couiit avers ownership in Mrs. Greenfield, of the locus in quo, since the 1st of January, 1869, and the indebtedness of Mhoon, the defendant, of $15,000 for 1,000 cypress trees which the defendant cut down, carried away, and appropriated to his own use. The cause of action recited in the 1st count is of strict right, and must be established in evidence with reasonable certainty. It is debt for a sum certain— that is, an amount capable of definiteness by calculation. The statute is severely penal, affixing to the tree an arbitrary
The statute creates an indebtedness by reason of the tor-tious act. Another feature is that the cutting must be without the consent of the owner.
The policy of the law is to protect this sort of property — ■ not always under the eye of the' owner, peculiarly exposed to the depredations of the lawless — by making it very costly to invade it. The penalty is in the nature of punishment as well as remuneration.
We naturally associate with the idea of punishment a willful wrong-doer, regardless of the rights of others.
The penalty has been merited because of the willful and deliberate trespass. Such has uniformly been declared to be the intendment of the statute. Perkins v. Hackleman, 26 Miss., 46 ; Exum v. Brister, 35 ib., 391.
The common law exacted pecuniary redress for a trespass on property, whether committed through inadvertence or not, or whether actuated by bad motives or not, as, if a man cuts a tree on his neighbor’s land, believing that it was on his own. To withdraw the tortious act from the operations of the statute, it must appear to have been done in mistake and inadvertence. If it is characterized by gross carelessness and negligence, in omitting reasonable pains to ascertain the boundaries of the land, it was said in Whitecraft v. Vandervern, 12 Ill., 239, that the statute applies. Blackburn v. Baker, 1 Ala., 179.
To recover under the 1st count, the plaintiffs must prove, 1st, the number of cypress trees cut on Mrs. Greenfield’s land by the defendant, or his agents and servants, with his consent or by his command, within twelve months before suit brought; 2d, that such cutting was done willfully, without Mrs. Greenfield’s consent; or, 3d, the defendant omitted
Under the 2d count the defendant is sought to be made liable for the value of all the tree's cut on Mrs. Greenfield’s land after the 1st of January, 1869, and appropriated to his own use.
As to all the trees that do not fall within the 1st count the plaintiff elects to waive the tórt, and claim simply the actual value of the trees. Let us recur to the testimony to see how the facts were under the respective counts. Mhoon speaks in his deposition as if he had actual knowledge of the location of Mrs. Greenfield’s land, and of the cypress brake upon it. He refers to its situation relatively to his own land. He identifies it also when he informed Greenfield that the cypress had all been cut off of it. It was proved that this brake had been almost entirely denuded of cypress, and the land rendered valueless.
Bainbridge states that, as employé of Mhoon, he cut from 100 to 500 trees on the Greenfield land in 1869- — ■“ nearer 500 than 100” — but whether cut within twelve months before suit brought, or, if any, how many, he does not say. Without resorting to conjecture it is impossible to determine whether the defendant is liable for the penalty as respects any of these trees, or, if any, how many.
Blonde says there was shown by the survey to have been 600 fresh-cut trees on the Greenfield tract. In 1869 he cut off plaintiffs’ land, and floated trees from there and Mhoon’s land. In all about 1,000 trees were cut; about 600 the year before. The suit was brought in the spring of 1870.
Witness cut the first tree on Greenfield’s land. Mhoon
It does not, with that definiteness and certainty which the form of action requires, point out how many trees were cut ofF the plaintiffs’ land twelve months before suit brought.
In the second place there was no proof of the value of the trees for which recovery was had under the 2d count.
But was it admissible, under the rules of law applicable to such cases, to prove the value at the time and' place, as of a quantum valebat9
What is the measure of proof necessary to entitle the plaintiff to recover under that count? It is laid down in the books, in general terms, that if the defendant has converted the goods, as by a sale, the plaintiff may abandon the tort and recover the money for which the goods have been sold, treating the money as “ had and received” for the plaintiff’s use. This goes on the idea of a ratification of the sale, and an election to take the price whether the full value of the goods or not. There is a very strong statement in Jones v. Hoar, 5 Pick., 290, that there must have been a sale and realization of money by the trespasser, to allow a waiver of the tort, and recovery in'assumpsit or ex contractu. A further modification is, sufficient time must have elapsed, with concurrence of circumstances, to justify the inference that they have been converted into money (2 Greenl. on Ev., § 117) ; then the presumption may be indulged of a sale. The authorities do not seem to support the theory that in all cases of the taking and asportation of goods the trespass may be waived, and recovery had in assumpsit as for a quantum valebat.
‘ There must be the further fact that the goods have been converted into money, which the owner chooses to take instead of the goods themselves, or damages for the trespass. See Conally v. City of Natchez, 1 S. & M., 46.
If in this case the plaintiffs shall be able to prove, under the 2d count, that the trees were sawed up by the defendant into
We construe the contract made with the lessees to be a sale •of the trees or logs, or so many as were needed by the lessees to keep the mill running, at the price of $500 per month of running time. It may also be left open to make the same inquiry as to the trees cut on the land of the plaintiffs, and ■sawed up by the lessees.
We do not propose to say in advance that such proof will or will not entitle the plaintiffs to recover under this count.
For the errors herein before indicated the judgment is. ■reversed and cause remanded.