5 Kan. 151 | Kan. | 1869
By the Court,
This action was commenced originally in the court below by said Samuel P. Mather, as plaintiff, against the said plaintiffs in error, who were defendants in the court below, to recover damages for cutting down and carrying away timber from a certain piece of land.
The case was -tried before a referee, who found in favor of the plaintiff below as follows: Said land was
originally a part of the Wyandotte reserve. The Hnited States under article 4, of the treaty with the Wyandottes, of January 31, 1855, issued a patent for said land to one Susan Hicks, an incompetent Wyandotte Indian, with a condition in it, that she should not convey the same without the consent of the Secretary of the Interior. After-
Tbespass : ownership. The proposition that a party in possession of A A A •/ A reaq estate can maintain trespass, qucere clau sumfregit, against a mere wrong doer, for any -inj ury to his possession, is too well settled to be controverted. It is true that the measure of his damages will depend upon the nature and extent of his interest in the premises. If he has no interest in the land, he could recover nothing for any injuries to the land. If he has no interest in the timber, he could recover nothing for any injuries to the timber. In such cases, he could recover merely nominal damages, for the disturbance of his possession.
Color op title. But in this case, the plaintiff is not only in possession, but he claims to be the owner of the land, and has color of title thereto, and however defective his title may be, yet for the purposes of this suit
The judgment of the court below is affirmed.