Hubbard v. Hubbard , 15 Me. 198 ( 1839 )

The case was continued for advisement, and the opinion after-wards drawn up by

Weston C. J.

-The statute of 1821, c. 35, gives this action to any one of the tenants in common injured, in his own name ; and relieves him from the necessity of stating in his declaration the co-tenants, other than the defendant. And we think, that as he need not aver who the other co-tenants are, he cannot be required to furnish proof upon this point. This provision of, the statute must have been intended to obviate any difficulty, which he might have to encounter, in deducing and establishing the title of the other co-tenants.

The statute is penal, and therefore not to be extended by construction, but effect is to be given to it, according to the plain and obvious meaning of the language used, however severely it may operate upon the’ delinquent party. By the treble damages, we are of opinion, must be understood three times the injury, done to the common property by the strip and waste made by the defendant. He is expressly by statute, as the wrongdoer, excluded from receiving any part of these damages. One moiety is given to the tenant, who brings the action, and the residue to the co-tenants, other than the defendant, according to their respective proportions in the common property. A tenant may enter upon and use the common property, by giving due notice to his co-tenants, without incurring a penalty. If he presumes to strip the land, without giving such notice, he does it at the peril of being held to pay the penal damages, imposed by the statute.

The jury having settled tbe single damages, judgment is to be rendered for the plaintiff for three times that amount.