Missouri, Kansas & Texas Railway Co. v. Arnold

10 Kan. 473 | Kan. | 1872

Lead Opinion

The opinion of the court was delivered by

Kingman, C. J.:

The plaintiff in error took and carried away the ties of defendants in error from land belonging to neither party. Is the plaintiff in error liable for treble damages under our statute? Gen. Stat., 1095, ch. 113, §1. This must be decided by a construction of the statute solely, for the statutes in Illinois and Michigan are so different in their phraseology that the decisions in those states, to which we have been referred, throw no light on the point. In Missouri the statute, so far as this question is concerned, is similar to our own, but there appears to be no decisions on this point— though it is'observable that all the reported cases are brought in the name of the owner of the land, which is an indication of some value, as showing the view of the law taken by the profession in that state. The recovery for the injuries provided for by the first clause of .the section referred to, could only be by the owner of the land, as it is only the real' estate that is injured. The same is true of the third clause of the section. And to a certain extent it is true of the second and fourth clauses; for taking timber growing upon land is an injury to the real estate, for which the owner of the real estate injured must bring the action. But timber, rails, or wood, being on the land, is not necessarily a part of the realty. It ■depends upon its use and the purpose of its being there. It is the “party injured” that is to recover the treble damages. Now if the land of B. is entered upon, and the timber of A., being thereon, is taken by a trespasser, both parties are injured, the first by the unlawful breaking of-his close, and the second by the loss of his property. Which shall recover the treble damages? But one can. The statute is uncertain ■on this point. The whole section must be construed together, .and such a construction given as will bear test of every probable application. A case, will likely arise where the owner .of the land, and the owner of the property, both, will claim the treble damages. Both cannot have them, because the statute authorizes but one recovery. We think it will best harmonize the whole section to hold that the owner of the land is entitled to recoyer in this one instance, as he certainly is in all the other cases provided for in the statute. This was probably what the legislature intended in the law. It does not follow, as argued by defendant in error, that when it is held that the action must be in the name of the owner, that such ruling necessarily means the owner in fee simple. That point can be decided when it arises. The other errors suggested would not authorize a reversal, if they actually exist. The judgment must be modified so as to give judgment only for the amount found by the verdict.

Brewer, J., concurring.

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Concurrence Opinion

Valentine, J.:

I concur in the decision, but not in all the positions taken.