Palmer v. Davidson, 211 Mass. 556

Palmer v. Davidson

211 Mass. 556 | Mass. | 1912

Hammond, J.

This is an action brought under R. L. c. 185, § 7, whereby the plaintiff seeks to recover damages for an alleged trespass upon her land and the cutting and removing therefrom of certain trees.

1. The defendant contends that the statute is penal and accordingly should be strictly construed, while the plaintiff contends that it is remedial and should be liberally construed. The statute is plainly remedial and not penal. It gives damages only to the person whose property is injured, which in form and substance is indemnity. It is immaterial that the sum recoverable exceeds the actual injury. Reed v. Northfield, 13 Pick. 94. Gray v. Bennett, 3 Met. 522. Mitchell v. Clapp, 12 Cush. 278. Woodgate v. Knatchbull, 2 Term Rep. 154. Stanley v. Wharton, 9 Price, 301.

2. At the trial the defendant admitted that he cut the trees described in the declaration, that he had no right to cut them, that the plaintiff owned the land on which they Stood at the time of the cutting and could hold the defendant answerable for the damages suffered. And the only question really in dispute is whether the damages should be single or triple.

*558The only right which the defendant had to cut trees upon the plaintiff’s land was derived from a certain deed from the plaintiff to him. This deed conveying the wood and timber on a certain tract of land therein described consisting of about seventy acres, contained the following clause: “Reserving and excepting, however, from the above described wood, trees and timber and from this conveyance, all the trees standing on and included in what is known as the walnut grove, situated in the northeast corner of the above described premises.” It appeared that of the trees cut some were chestnut and some oak, all growing within the limits of the walnut grove named in the above mentioned clause of the deed. During the trial the defendant offered to show that at the time of the cutting he believed he had the right to cut the trees, and that he had no wilful intention of cutting trees to which he had no right. The presiding judge ruled that this evidence was inadmissible upon the ground that as matter of law there was no ambiguity in the reservation clause contained in the deed, and that under the clause the defendant had no right to cut the trees.

The evidence was rightly excluded. The defendant’s deed gave him no right to cut the trees. He had in his own possession the document determining what his rights were, and he must be held to have known the terms of the deed; and he cannot now be permitted to set up his own neglect. Under such circumstances, if he intentionally cut down these trees he cut them down wilfully within the meaning of the statute. The jury were instructed in substance that if the defendant, knowing that he was upon the land of the plaintiff, cut down and carried away these trees, then he was answerable in triple damages unless he had good reason to believe that the land was his own or that he was lawfully authorized to do the acts complained of. And they were further instructed that the word “wilfully is used in the sense here of one. going upon the land of another and doing it consciously, doing it intentionally,” “ in contradistinction to casual and involuntary.”

' These instructions were correct as applied to this case. The defendant knew1 all the facts. He went upon the land of the plaintiff knowingly, and intentionally cut down the trees. The presiding judge correctly ruled that the defendant had no reason to believe that the land was his, or that he was lawfully authorized to go *559thereon. We see no error in the manner in which the court dealt with this part of the case.

The exception to the statement in the charge that the measure of damages is the fair market value of the lumber at the time it was cut is not argued, and considering its nature we regard it as waived.

Exceptions overruled.