45 Vt. 75 | Vt. | 1872
The opinion of the court was delivered by
The suit should have been dismissed on defendant’s motion, if the county court had no original jurisdiction of the action. If the action is an action of trespass on the freehold,, the county court had original jurisdiction. Whether the plaintiff under this declaration has the right to recover treble damages or not under the statute, the action is an action of trespass on the freehold, and must be so regarded in reference to the question of jurisdiction. The statute giving treble damages in certain cases of trespass on real estate, does not create the right of action, but only gives cumulative damages for what was, and still is, actionable at common law. The declaration charges the defendant with entering upon the land of the plaintiff, and then and there, without leave or license of the plaintiff, cutting down and carrying away trees then standing and growing on said land; and concludes to the damage of the plaintiff fifty dollars. The county court had original jurisdiction of the action, unless it is within the jurisdiction of a justice of the peace. The statute gives jurisdiction to a justice of the peace, “ of actions of trespass on the freehold where . the sum in demand does not exceed twenty dollars.” This is the limit of the jurisdiction of a justice of the peace in this form of action; and it is immaterial to the question of jurisdiction whether the title to the land is in fact disputed or put in issue on
The exception by the plaintiff is to the decision of the county court treating the action as trespass on the freehold for cutting and removing trees and timber, and not an action upon § 51 of ch. 113, Gen. Stat., which gives, under certain circumstances, “ treble damages by action founded on this statute, together with costs of prosecution,” against the party who “ shall cut down, destroy, or carry away any tree or trees whatevei, placed or growing for use, shade or ornament, or any timber, wood.or underwood standing, lying, or growing on the land of any other person, without leave or license from the owner or owners of such lands.” It will be noticed that the statute gives' treble damages only “by action founded on this statute.” It is therefore necessary, in order to entitle the plaintiff to recover treble damages, that the action by the declaration should clearly appear to be founded on the statute, indicating that the plaintiff claims to recover the treble damages; otherwise the defendant would have the right, • and the court would be bound, to treat it as an action of trespass at common law» There is nothing in the form of action in this case that indicates such claim ; the action being the appropriate
Judgment affirmed.