64 Pa. Super. 354 | Pa. Super. Ct. | 1916
Opinion by
This is an action of trespass for the unlawful cutting of timber trees. It is broad enough to include the common law action. The cpmmon law action of trespass is to redress the injury done by an award of compensation or the value of the timber; the specification under the statute for treble damages is to recover the penalty prescribed by the statute, and intended to'reach those who negligently or wilfully intrude upon the lands of others. Both may be joined in one form of action, though but one recovery can be had if so brought: Hughes, et al., v. Stevens, 36 Pa. 320; Fairchild v. Dunbar Furnace Co., 128 Pa. 485. This action is trespass quare clausum fregit, in which the plaintiffs declared-under the statute for treble the value of the trees as their measure of damages. The trespass complained of is the entry on lands belonging to the plaintiffs and the cutting and removal of the timber trees without their consent. In such action, if the plaintiffs should fail to establish their case for treble damages, they could, if the facts warranted, recover single damages as compensation: McCloskey v. Powell, 138 Pa. 383.
It is admitted defendants cut over the line. The lines were marked to set off this tract. The quantity cut and its value have been established by credible evidence. The third section of the Act of March 29, 1824, reads as follows: “In all cases where any person ...... shall cut down or fell, or employ any person or persons to cut down or fell, any timber tree or trees, growing upon the lands of another, without the consent of the owner thereof, he, she, or they so offending shall be liable to pay to such owner double the value of such tree or trees so cut down or felled; or, in case of the conversion thereof to the use of such offender or offenders, treble, the value thereof, to be recovered, with costs of suit, by action of trespass or trover, as the case may be.” Two separate offenses are created: cutting down and felling timber, and conversion to the offender’s own úse.
The position that penal statutes must be construed strictly and should not apply except to those directly concerned,„ must be considered in the light of the facts. It is not a strict construction of the Act of 1824 to hold as a principal one who by contract engages a jobber to cut the timber trees of a certain tract without pointing out the lines of the tract and is notified that his jobber has cut over the line and with such khowledge takes away and converts the timber unlawfully cut. That he acquired the right from a person who had no title would
Concerning the sufficiency of the evidence of title, there would not be much question if this were an ordinary action of trespass. All that would have been necessary to show would have been that the plaintiffs were in possession of the property, but when the statutory measure of damages is claimed under the Act of 1824, not only must the possession be shown but that the party in possession claims under a color of title. The deféndants object to the plaintiffs’ evidence of title because it consisted of but one deed of conveyance made about ten years prior to the injury complained of. At the close of the testimony it appeared that there had been given in evidence a history of the title for some twenty-five or thirty years; that the property from which the timber was cut was originally a part of a piece of land thát was cultivated. The plaintiffs had on several occasions cut timber and had paid the taxes on the property from the time they had purchased it. • The identification of the property with the lines contained in their deed was well established by a survey made from that deed and the lines of the property in reference to defendants’ property was marked. There is no doubt that this is prima
The judgment is reversed and a venire facias de novo is awarded.