Rogers v. Judd

5 Vt. 223 | Vt. | 1833

The opinion of the Court was delivered by

Baylies, J.

Neither party in this suit was the owner of the wood and timber in question, while floating, and moving from place to place in the eddy. But each party had the exclusive right to seize all such wood and timber, while floating and moving over his own land, and to take it out of the water for his own use; and if the owner did not claim such wood and timber in a reasonable time, the the same would become the property of the captor by occupancy. — (2 Black. Com. ,402.) If the defendants, to secure the wood and timber, which they had lawfully seized floating over their own land, drew the same across the land of the plaintiff, this would not subject the defendants to pay the plaintiff for such wood and timber; but they might be liable for trespass upon the plaintiff’s freehold. In such case the damages would probably be small. But if the defendants seized the wood and timber, while floating over the plaintiff’s land, and drew it out of the water to convert to their own use, this was more than a trespass upon the freehold. It was a violation of the plaintiff’s exclusive right to seize the wood & timber in that situation. In assessing the damages for this violation,. it is for the jury to find, what the pl’ff lost by the defendants’ infringing his exclusive right. The pl’ff did not lose the wood and timber, for these were never his; but he lost the chance of seizing the wood and timber on his own land, & converting them to his own use, if the true owner did not prevent it. The jury should en-quire what this -chance was worth to the plaintiff, for sojmuch he lost, by the defendants’ trespass.

if the plaintiff’s chance to seize the wood and timber was positively certain, the value of this chance was much less than the value of the wood and timber on the land — the plaintiff having absolute property in the same : theMifference was the expense of seizing and drawing the wood and_tim-ber out of the water upon the land, and the.risk of losing the same by the owner. But the plaintiff’s chance to seize was not positively certain; but depended upon contingencies, which rendered his chance uncertain, and lessened its value. If the defendants had not seized the wood and timber, when they did, the water might have carried^them out of the eddy, and the plaintiff would have lost his chance to seize. This contingency of water carrying wood and timber out of the eddy had happened, and might again, which rendered the plaintiff’s chance to seize in some degree uncertain, and of less value.

In high water, as often as once in every ten or fifteen minutes, wood and timber in the eddy form a complete circle, which is partly over the defendants’ land, and partly over the plaintiff’s land. Now if the defendants on their land, had as good a chance to seize the wood and timber in question, when floating in this circle, as the plaintiff had on his land, then the plaintiff’s chance to seize, was lessened one half, and was worth only one half as much as it would have been, if the defendants had no chance to seize on their own land.

It was for the jury to have found the value of the plaintiff’s chance to seize and enjoy the wood and timber, that were taken by the defendants on his land, and as they found the value of his chance, all circumstances considered, so should have been their verdict for damages, on account of the defendants’ depriving the plaintiff of his chance.

Upon the above principles the cause should have beeas submitted to the jury j but the Court so charged, that the jury might understand that they were to assess damages for the plaintiff according to- the value of the wood and timber seized by the defendants, on the plaintiff’s land, andi not pursued and claimed by the owners. If this was the-meaning of the charge, it was not according to the principles which we consider to be correct-: therefore, the judgement of the County Court is reversed, and a new triad granted,.