Wright v. Brown

5 Kan. 600 | Kan. | 1870

By the Court,

Kingman, O. J.

The sole question to be considered in this case is, whether section one of chapter 114, General Statutes, gives treble damages where the elements of malice are wanting. The petition does not allege any malicious motive, only stating that the' defendant unlawfully cut down and. carried away of the trees growing for use on the plaintiff’s land of the value, etc. The case was tried by the court who found for the plaintiff, and that the value of the trees cut and carried away, was $142.50; that there was no evidence going to show that defendant was actuated, in doing what he did, by any malicious motive. That there had been a dispute and litigation as to the title to the land from which the trees had been cut, which had been decided adversely to the defendant, and that the land and trees were and had been the property of the plaintiff. Upon these findings the court gave judgment for $427.50, or treble damages. It is claimed that this is error.

Cutting Down Timber; Mahce: Treble Damages. : It will be observed that the statute gives the : damages without regard to the motive of the wrong doer, and it would be a gross error for this court on any supposed hardship to interpolate words that would destroy the statute in almost every case where it could have an application. The motive which usually actuates men in doing the wrongs for which this statute gives the remedy, is not a malicious one, but more frequently an avaricious one. The court below followed the plain and obvious reading of the statute; we cannot do otherwise. There being no obscurity, there is no room for construction. We copied the statute from Missouri. The construction we have given to it is the one uniformly given by the courts of that .state under a proper state of pleadings and evidence. Nor is the fact that the land was in litigation, even in good faith, any reason why treble damages should not be given. During that litigation the defendant should have let the timber alone.

In the case of Emerson v. Beavans, 12 Missouri, 512, the Supreme Court of Missouri held that because the evidence showed that defendant had probable cause to believe that he was cutting on public land, and not on private property, was no reason why treble damages should not he given. The learned judge who delivered the opinion, saying “the only reason which should he entertained in extenuation of such a trespass, should he in the language of the statute, that the land or the thing was “his own.”

The demurrer was properly overruled, the petition being a good one.

Election op causes o f Action. The court correctly refused to compel an election on the part of the plaintiff as to whether he would proceed for the actual damages or treble damages. The petition was obviously intended for the latter, and was good for either, so that there was nothing to elect.

These two last points are not pressed in the argument, hut are raised by the record and the petition in error, and we have necessarily decided them.

The judgment must be affirmed.

All the justices concurring.