Blackburn v. Baker , 7 Port. 284 ( 1838 )

COLLIER, C. J.

— -Three questions arise upon the bill of exceptions in this case.

1. Does the actual occupancy of the half of a quarter section of land, draw to its occupant the possession of an adjoining quarter section of unimproved and unoccupied land, over which he had exercised ownership by cutting logs for his saw mill, so as to authorise him to maintain trespass guare clausum fregit, against one who had also cut logs thereon for his mill, and who was in the occupancy of land as near it as that occupied by the defendants in error ?

2. Is a plaintiff entitled to recover tiie statute assessment of the value of trees in an action for a trespass upon land, in the usual form?

3. In such an action, can the jury find one defendant not guilty, and the other guilty, where a joint trespass is charged against two ?

1. It was not insisted for the defendants in error, that they were entitled to recover by force of a constructive possession, nor could such an argument be maintained; for such a possession, as contra-distinguished from one that is actual, never exists in the absence of title. And with this it is not pretended that the defendants are invested-Gillespie vs Dew. (1 Stew. R. 229.)

So far as the evidence on this point (as disclosed in the bill of exceptions) shows any thing, it is about as strong to prove an actual possession in the plaintiff in error, as in the defendants. But, in our opinion, it falls short of shewing either party to have been thus possessed. This case does not make it necessary to define, with particularity, what is necessary to constitute actual possession — and we will therefore leave that question open, to be decided when it shall directly arise. We will remark, however, that the occupancy of eighty acres of land, cannot draw to its occupant the adjoining eighty acres, though unoccupied, and a part of the same quarter section. Otherwise, we must suppose not only that an appropriation, by metes and bounds, or an enclosure, was not necessary, but that he who acquires one sub-division of land, has also become the purchaser of another sub-division contiguous — which would extend the doctrine of presumption, quite too far—Jackson vs Shoemaker, (2 Johns. R. 234;) Jackson vs Woodruff, (1 Cowen, 276, 285;) Ibid. 605.

2. The judge of the Circuit court instructed the jury, ‘‘ that if they found the defendants guilty, they might, under the second section of the act, title “ Trespass,” (Aik. Dig. pp. 426,) find three dollars for every tree cut, carried away, or destroyed,” &c. The words of the section referred to, are as follows: “ If any person shall cut down, carry away, or destroy any cypress, white oak, black walnut, pecan or cherry tree, upon any lands uot his own, without first having the consent of the owner, he shall forfeit and pay the owner thereof, tea dollars for every such tree, so cut, carried away, or destroyed ; and for every other tree so cut, carried away or destroyed, without, leave as aforesaid, the sum of three dollars, except such trees as may be cut or taken out of, or for the use of public roads.” The trees cut and carried away by the plaintiff were pine trees, and of course estimated at the smallest sum.

It is a settled rule, that in actions on statutes, the plaintiff, by the statement of the cause in his declaration, must bring himself within the act, by setting forth every circumstance material to a proper description of the offence—Ellis vs Hull, (2 Aik. R. 41;) (1 Cowen, 176;) (6 Cowen, 290.) A declaration on the statute should aver that the plaintiff was the owner of the land —state the number of trees cut, &c. and their description — that they were cut, &c. without his consent, &e. In the case before us, the declaration is defective, perhaps, in almost every essential — so much so, that it is clear that it was not framed with a view to the statute.

Again — The form of the action is not adapted to the recovery of the penalty assessed by the statute. Whenever a statute gives a right to recover damages, which are ascertained by the act itself, an action of debt lies and is proper, if no specific remedy is provided—Bigelow vs the Cambridge and Concord T. A. (7 Mass. R. 202;) United States vs Allen, (4 Day’s cases, 474;) (1 Chitty’s Pl. 104;) (2 Bacon’s Ab. 280.) The charge of the jury is, then, erroneous — they should have been instructed— if the defendants in error entitled themselves to a recovery, to give damages proportioned to the injury done, without regard to the value affixed to the trees by the statute.

3. In regard to the last point, the charge of the Circuit court is correct. It is competent for a jury, in this form of action, to acquit one defendant and find the other guilty, and assess damages against him.

The judgment is reversed, and the cause remanded.