Longfellow v. Quimby , 29 Me. 196 ( 1848 )

Tenney, J.

The plaintiff claims title to the land, on which he alleges that the trespass has been committed by the defendants, under a sale made by the treasurer of the county of Washington, to him on October 9th, 1840. This sale was for the purpose of obtaining the tax, which had been assessed upon the land by the county commissioners of that county, to make the road laid by them through the townships, in which the land was situated.

The defendants deny the title claimed by the plaintiff', and therefore his right to maintain this action, upon the ground, that the records of the county commissioners, introduced, show, as it is contended, that they did not follow the steps pointed out by the statute, in their attempt to establish the road; and several defects in their proceedings are pointed out and relied upon. In adjudicating upon the necessity of the road and in their subsequent acts in its location, the commissioners had jurisdiction of the subject matter. It appears that they gave notice to all interested, in a manner contemplated by the statute : and therefore the defendants became so far party to the proceedings, that they are precluded from denying the jurisdiction of the Court. The power, which the commissioners exercised in reference to the road, under the statute, was a judicial power. The records of their proceedings and judgments are, therefore, entitled to the same respect as the records and judgments of other tribunals, so long as they act within the legal sphere of their duty ; they have the character of judgments, until impeached in some proper mode.

The road, which the commissioners laid out, was such de fac-to, and tiie failure of the plaintiff' to recover upon this ground, would have no effect to make it otherwise. It cannot be declared a nullity, until the proceedings are quashed on certiorari ■ and this can be done, only in the exercise of a sound discretion of this Court, where the subject is legally before it, notwithstanding it may be seen by the record now in this case, that there were important omissions and irregularities. To allow these omissions and irregularities to have the effect, contended for, as matter of right and law, would be giving to them a consequence, when incidentally presented, which they might not have if they were directly brought to its consideration on a petition for certiorari. And the road might continue to exist as a legal highway, while the power, which the statute requires should be exerted for its construction and repair, might be practically denied. Principles which tend to such results cannot be admitted.

The authority of county commissioners, on the subject of highways, has been regarded in this State as differing materially from the powers vested in towns and their officers over town and private ways. It has been held by this Court, that a writ of certiorari does not lie to quash the proceedings of selectmen, and the town where they have attempted to lay out and establish ways, which they are authorized to do, and failed to comply with all the legal requirements, as it does where highways have been located by the court of sessions or county commissioners; and hence the proceedings of towns in this matter, have been allowed to be examined and controverted in actions of trespass quare clausum fregit. Harlow v. Pike, 3 Greenl. 438. The Court say, in the case of Parks v. the City of Boston, 8 Pick. 218, “ The uniform distinction is between judicial and ministerial acts; the former being only voidable for error, and the latter being merely void, if not done in pursuance of lawful authority. And as judicial acts are valid, until reversed for error, a writ of error or certiorari will lie in such cases. If the proceedings are in a Court of record, according to the course of the common law, a writ of error is the proper remedy, to reverse and vacate an erroneous judgment; otherwise, the remedy is by certiorari. Wales v. Willard, 2 Mass. 120; Sumner v. Parker, 7 ibid. 79; Cushing v. Longfellow, 26 Maine, 306.

Another objection relied upon by the defendants is, that the county commissioners erred in the manner in which they made the assessments upon the land of the township, for the purpose of making the road; that instead of assessing the land in gross, they were required to impose the tax upon the several lots, into which the town had been divided. And the case of Shimmin v. Inman, 26 Maine, 228, is adduced as authority in support of the proposition contended for. The same provision of the statute, which authorized the commissioners to establish the road, empowered them to raise a tax with which to support it.

Their power is judicial in one case as in the other, and the judgment which is the result of their deliberations and acts, as disclosed by their records, must be annulled in another process, before the assessment can be pronounced void. But it may not be improper to remark, that the statutes regulating the assessments of unimproved lands of non-resident proprietors in incorporated towns, and that for the direction of county commissioners in the performance of their duties which we are now considering, are unlike. In the latter, it is provided, that the assessments shall be made on such tracts of land, township or plantation at so much per acre, as the commissioners shall adjudge necessary for making or mending such highway, and defraying the necessary expenses attending the same; if the lands are held in severalty, the proprietors shall be taxed in severalty, provided such proprietors shall previously furnish the Court with proper documents for that purpose. Stat. 1821, chap. 118, sect. 24. The case does not show that such documents were furnished, and it is not perceived that there was any error on this account in the assessment.

The objection to the validity of the sale of the land, by the county treasurer, has no foundation in fact. The sale was on the usual terms for cash, and there was no understanding, that the treasurer should not call on the purchaser for the money till it was wanted. After the sale, the plaintiff paid a part of the consideration and gave his note for the balance, the treasurer having no occasion for the money, and considering the note as good as the common currency of the country. This is unlike a case, where a stipulation is made before the sale, that a credit is to bo given to the purchaser. Here the treasurer, as such, was accountable for the whole sum for which the land was sold, and the taking of the note for a portion of the purchase money was a matter between the plaintiff and himself, in his private character.

No evidence was adduced tending to prove that the defendants, or either of them, entered upon the land described in the plaintiff’s writ, and cut the timber thereon under a license from any one ; and their acts at the time they were committed, were a trespass upon the rightful owner. For this trespass, this action was properly brought by the plaintiff. The subsequent payment to the other tenants in common with the plaintiff cannot defeat the action. The injury complained of, was the breaking and entering the plaintiff’s close, aggravated by cutting and carrying away the trees thereon standing. The damage sought to be obtained was to the plaintiff alone, and to recover this, he is entitled to his several action. R. S. chap. 129, sect. 17. If the co-tenants had themselves cut and carried away the timber in the same manner, that the defendants are charged with doing it, the cutting and carrying away would have been unlawful, and they would have been liable in an action, for three times the value thereof, to the plaintiff. R. S. chap. 129, sect. 7. Their receipt of the value of the timber belonging to the plaintiff, given to the defendants, cannot take away his right to maintain the action, previously commenced, for the loss which he has suffered by their unauthorized acts.

The plaintiff was allowed to introduce evidence against the objection of the defendants, to show that a quantity of timber was cut by them on parts of township No. 7, which parts were not described in his writ as land on which a trespass was alleged to have been committed. This was incorrect. A reduction of the damages found by the jury, which is offered by the plaintiff, cannot be made with certainty. The quantity and the value of the timber cut upon this portion of the township is shown, and no contradictory proof appears to have been adduced; but no evidence is reported of the whole quantity taken from this township, and nothing exhibiting the sum allowed by the jury in addition to the value of the timber.

The jury were instructed, that the defendants, having failed to prove a license from any owner of township No. 7, were to be deemed wanton trespassers and the plaintiff was entitled to recover the full value of the timber taken off, and such further sum as he ought, in the opinion of the jury to have, for looking after the trespassers; and in ascertaining the damages for trespass upon township No. 6, the jury were allowed to add to the value of the trees, compensation for the trouble of the plaintiff. These instructions were erroneous. The motive of the defendants, if material, was a fact to be found by the jury. The Court could not make the legal conclusion that the acts were a wanton trespass, from the fact that the defendants had no license from the real owners. One may enter upon the land of another by virtue of an authority, which he believes to be fully sufficient; if it proves otherwise, his acts cannot be termed wanton, so long as they were prompted by honest intentions.

The case discloses no attempt to prove any trouble on the part of the plaintiff in looking after the trespassers ; and damages would not be increased by reason of what did not exist. The jury might well have understood, that they were permitted to presume that the plaintiff had been put to trouble in seeking indemnity for his losses, by exertions to ascertain who invaded his rights, and to bring them to justice, and that damages should be allowed therefor; and it may have been done accordingly.

If evidence upon this point had been introduced, it was not competent for the jury to have increased the amount of their verdict on that account. Damages are given as compensation,, recompense or satisfaction to the plaintiff for the injury actually received by him from the defendants, and they must be the natural and proximate consequence of the act complained of. 2 Greenleaf’s Evidence, sect. 253 and note, 2nd ed.; ibid. 255. The trouble of looking after the trespassers is not of this character, and cannot be considered by the jury in the estimation of damages.

The law does not recognize interest as the exact measure of damages for the detention of property taken in trespass in addition to its value. The jury could not have so understood the Judge in his instructions. He laid down no rule of law, which required them to make that addition or to restrict them thereto. Verdict set aside, and new trial granted.