| Mo. | Sep 15, 1840
Opinion of the Court by
The Turleys sued Tucker in an action of trover, and had a judgment for three hundred and seventy five dollars. On the trial the following facts appeared: The plaintiffs were owners of a saw mill, and in the spring of 1837 employed some ten or twelve hands to cut down trees in a pinery about three miles from their mill, and within a half a mile of the saw mill, belonging to Tucker.
The instructions refused to be given by the court, at the instance of defendant, it is unnecessary to insert, as they were in substance that the action could not be sustained on the facts above specified. Two of them will be sufficient to illustrate some points in the case. The seventh instruction which the court refused was as follows: “If the jury shall find from the evidence in the cause that the plaintiff cut down the timber, in the declaration mentioned, without a bona fide view to its use, and did not use the same, the tinr her being and appertaining to the public domain, and lying as cut down from the first of March 1837 until the first of September 1837, then the said plaintiffs are trespassers against the United States, and cannot recover against defendant for using a part of. said timber.” The eighth instruction, which was also refused, was as follows: “If the jury shall find from the evidence that the plaintiffs cut the timber, m the declaration mentioned upon the land of the United States without any view to settlement or cultivation of the Jand, or acquiring a right or interest therein, then the plaintiffs are trespassers and acquired no interest in said timber by virtue of said trespass, and cannot recover in this action.”
The court gave the following instruction: “Although the logs might have been cut by the plaintiffs on public land for their own use yet they acquired such property in the logs, as will enable them to maintain an action of trover for the logs against a wrong doer.”
A motion was made for a new trial which was overruled, and the case is brought here by appeal.
The decision of a majority of this court in the case of Massie and James v. Snelson (3d Mo. Rep. 393) undoubtedly
To maintain an action of trover at the common law, the plaintiff must have a property either absolute or special and the possession or right to the immediate possession of the goods which are the subject of controversy, 2, Whea. Selw 1050, 6, Bac. Abr. Tit, trover C. There is no pretence that the plaintiff had any absolute property in the subject matter •of the controversy. Had they such a special property as would maintain trover? •
The special property spoken of by the books as sufficient to maintain the action of trover, is of two kinds and of two kinds only. The first is that property which is founded on a mere possession, held subject to the claims of the absolute-owner. The other isa temporary property without possession, only one instance of which Í have seen recorded in the books, (Roberts vs Wyatt, 2 Taun. 268,) and which has no affinity to the present case.
The first class of special property arising out of mere-possession, and which will sustain the action of trover against a mere wrong doer, is the only kind which bears upon the case under consideration. The authorities are very clear that mere possession is sufficient prima facie evidence-of property to maintain this action against a wrong doer.
1st. Did the plaintiff by cutting the timber on the land of the United Slates acquire such possession?
The entire argument upon which the plaintiffs right is-sustained, is founded, I think, upon a mistaken interpretation of the general law maxim just alluded to. The cases of .special property refered to by the authorities in illustration of that maxim, are Vnat of a bailee, a carrier, a lessee for life, a lord who seizes an estrav,a sheriff who has levied on goods, and the finder of a jewel. In all these cases, and every other instance of special property founded on possession, the possession has been a peaceable and lawful possession, or a possession acquired by some shadow of title from
The only reason then why possession is sufficient to main-, tain this action is because it is prima facie evidence of ownership, either absolute or special. The possession of bailee’s, carriers,- &c., is evidence of their ownership, and that evidence could not be rebutted by showing the absolute property in another, in a suit of this character, because that absolute property would not be inconsistent with such ownership as they claim. They hold by the express or implied consent of the absolute owners, but 'in the case before the court the very evidence which establishes the possession proves also that possession to be tortious, and consequently the plaintiffs possession being only prima facie evidence of property is rebutted by establishing a conflicting claim to an absolute property in another.
But let us examine the cases which have been relied on> and which are certainly the strongest to sustain the plaintiffs claim. In Sutton vs. Buck, (2 Taun. 302,) it was proved that the plaintiff being possessed of a cottage at T, and an inhabitant there, and as such, claiming a right to cut rushes upon the T. common for his own use, cut down five or six loads of rushes, which defendant seized .and carried away. The court sustained the action. The court said: “Indeed if a person hath no color of right at all to cut down
The next case bearing on this point is the case of Bassett vs. Maynard, (Cro. Eliz. 819) the substance of which may be found in a note of Mr. Williams, (2 Saun. 47, c.) sir T. Palmer being seized of a great wood, granted to Corn-ford as many trees as would make six hundred cords of wood, Ccrnford assigned his interest to plaintiff, afterwards sir T. Palmer granted to defendant so many trees as would make four thousand cords of wood to be taken at his election The plaintiff by the assignment of Sir T. Palmer cut down the trees in question, and the defendant claiming by virtue of the grant, took them, and it was found there was sufficient wood left for defendant. It was held that the action was maintainable even admitting the grant to plaintiff to have been void for, says the reporter, “by the cutting down of them he had possession, and a good title against defendant, and every stranger, and being cut down it was not lawful for defendant to take them.” Here the plaintiffs claimed a right to cut the wood under a grant from the owner of the land. It was 'prima facie no trespass, and as we shall see hereafter, in investigating the nature of the defence which may be set up in a case of this kind, the defendant could not rebut the prima facie title arising from possession, by showing that the deed was void, because he claimed no title himself under the rightful owner inconsistent with the right of the plaintiff. It was proved that there' was wood enough for both the grantees. This observation will apply to the case of Woodson vs. Newton, (2 Stra. 777)
The case of Schermehorn vs. Van Volkenburgh, (11 Johns R. 529,) is illustrative of the principle now contended for. That was a case of a sheriff who levied on chattels and took possession, and this possession the court held to be sufficient evidence of a special property to maintain trover. But the court in this case proceed to say:
“There is no doubt that a defendant in an action of trover may show title in a third person,” and accordingly reversed the judgment of the court below, because it had refused to admit evidence offered of a paramount title in a third person.
The case of Kennedy vs. Strong (14 Johns. R. 128,) turned upon the admission of the defendant that plaintiff had property, and the court would not therefore permit him after such acknowledgment to set up a title in a third person.
In Rotan vs. Fletcher, (15 John R. 207,) the defendant was allowed to set up property in a third person.
It has also been held that the defendant shall not be allowed to set up property in a third person, without some shadow of claim in himself; 11 Wend. 54; and Wheeler A. C. L. 223. But, it will be observed, that this was a question of defence, and not of title in plaintiff. All the cases concur, however they may differ as to the kind of defence allowable, that the plaintiff must first show a prima facie case, and that must be by showing a property, either general or special; until that is done, the question of defence cannot arise.
It remains to be considered, whether the situation of the plaintiff is different from that of any ordinary trespasser on the lands of a private person. On this head I confess my inability to perceive the force of the reasoning of this court in the case of Massie v. Snelson. The court did not undertake to say what the law would have been, admitting the plaintiffs to have been mere tresspassers, but proceed to assert that the settlers on the public land are not trespassers, and consequently allowed the plaintiffs to recover. Now from the report of that case, I have seen no proof that Massey and James were settlers on the public lands; on the eon-
But I am unable to see, what merit can be claimed by him who owning thousands of acres himself, yet prefers to get his firewood and rails, and timber, from the adjoining lands of the government, with no view to their improvement, but to the destruction of all the value which they possess. The practice I am aware is general, nor do I undertake to say it is morally reprehensive. It. is not the province of this court to decide questions of-ethics, but I imagine the persons who commit these trespasses do not for a moment suppose, that they can claim any merit with the government for so doing, or that they can call upon the courts of law to assist them.
I conclude then that the plaintiffs, who trespassed on the lands of the United States, occupy the same position with a trespasser on the lands of his neighbor, and could not, by such trespass, acquire any property, either general or special. The argument ab inconvenienti, suggested by the court in the case of Massie vs. Snelson, and urged at the bar in this case, is entitled to no weight in a case like the present. Whatever inconvenience may result from the law, as it now stands, it is the province of the Legislature to remedy. In
But these results are not likely to arise. Whenever there is an actual settlement, or the preparatory steps with a view to settlement, it is clear that the principle of this case can have no application. When such a case occurs it will be time enough to investigate that matter. No pretence is made here that the plaintiffs had any such designs, and no proof of any actual possession, distinguished from that constructive possession which propertj', either general or special, can give. But the facts disclosed in the testimony on record, present a practical commentary upon the great inconvenience of the doctrine in Massie vs. Snelson. 1 If a person can acquire property by making rails, or cutting saw logs on public land, may he not acquire as gooc^ a right by merely felling the trees? When does this right commence and when does it cease? What will be evidence of abandonment, or can there be none? If A goes into the neighboring forests, and by the aid of a hundred hands cuts down the timber for a mile around, intending to haul them at his convenience to his mill, or to convert them into rails, at such times as suits his convenience, how long must his neighbor, B, wait before he can undertake to make use of the fallen timber? Even according to the customs of the country, so often alluded to at the bar, and whi :h this court is desired to engraft into the common law of the land, such practices are not considered admissible, or jxs giving any title in the trespasser. \ It is held equitable, and with some propriety, that a man must cut and split as he goes, if his object be rails, or if saw logs, he must cut down and cut up the trees in proper lengths, in order to give him a lien. But according to the doctrine now sought to be established, the trespasser may destroy the timber for miles around, perhaps without any means of a railing himself of it before it will be rotten and useless, whilst his neighbors are utterly deprived of the benefit of participation, and obliged to haul their firewood, rails or saw logs,
To allow a recovery in this case would, in my opinion, be subversive of the well established and long settled principles of lqw, which, whether wise or unwise, this court is bound to administer. Judgment reversed.