McCloskey v. Powell , 1889 Pa. LEXIS 632 ( 1889 )

OPINION,

Mk. Justice Williams :

The several assignments of error in this case raise but a single question. The facts upon which that question is presented are not in controversy.

It appears from the evidence that Seateherd & Son, of Buffalo, N. Y., sent their agent, Ryder, into Elk county, to purchase cherry timber. In his search he went upon two warrants owned by Mr. Powell, of Ridgway, on which he had heard there was cherry timber. He found a growth of valuable cherry and other hard woods in the neighborhood of Mr. Powell’s lands, hut was unable to determine whether it was within Powell’s lines or not. He accordingly went to see Powell, and told him if the grove he had seen was upon his land he would make a contract for the timber on warrants Nos. 2517 and 2545, but if that grove was not on the land he did not wish to do so. Powell promised to have his lines run and to let Ryder know the result. Not long after he went with a surveyor and the necessary helpers to the warrants in question, to locate the lines and the grove of cherry. The surveyor went to the southeast corner of 2545, a well-known corner, and ran west on the south line of the warrant in search of the southwest corner, and the west line of 2545. That line was known to be not only the west line of the warrant, but the west line of Millstone township, and of Elk county, and to be also an original district line. The surveyor missed the southwest comer and ran more than one hundred rods beyond it, and far beyond the official distance, to a comparatively new corner made in the subdivision of one of the adjoining warrants. This he treated as the southwest corner of 2545, and, turning north, ran and marked a new line as the western line of the warrant. This line included a large part of the grove of cherry timber to which Ryder had called attention. The true west line excluded the whole of it. The surveyor had his attention drawn to both the northwest and southwest corners of 2545, in the old district line, before he left the ground, but he nevertheless made a diagram showing his work, and a new line, as the west line of 2545, and gave it to Powell, but told him of the old corners in the district line, as he alleges. Powell, acting upon the idea that the diagram was correct, and without any further investigation of the lines and corners of 2545, advised Ryder that a survey had been made and the cherry found to he on his land.

A contract was accordingly made with him by Ryder, on behalf of his principals, for the hard wood on warrants Nos. 2517 and. 2545. The timber was to be cut and taken away within three years, and to be paid for at the following rates : the cherry at $10 per thousand feet, the ash at $7, and the poplar and cucumber at $5 per thousand, board measure, the amount to be estimated on the stump. This estimate was to be made at once by Ryder on behalf of Scatcherd & Son, and by Frampton on behalf of Powell. The lines were to be pointed out by Frampton, who was with the surveyor when the new west line of 2545 was run and marked, a short time before, which inclosed the cherry timber. The line pointed out was the new line which inclosed two hundred and sixty acres west of the true line. Frampton and Ryder went to each tree thus appearing to be on 2545, marked and estimated it, and returned their estimate when completed to their principals. Ryder then went upon the ground for his principals and cut and removed the timber under the contract, and the stumpage was promptly paid to Powell as it fell due. The owners of warrant No. 3158, within which the timber was, brought this action to recover treble the value of the trees so cut and removed, and they joined Powell, the vendor, Scatcherd & Son, the vendees, and Ryder, the agent, as defendants in the action.

Powell denied his liability because he had not personally felled the trees or employed others so to do. The plaintiffs stated the ground on which they sought to recover in their first point, by which they asked the court to instruct the jury as follows: “If the jury believe from the evidence that Poweff procured the west line of his lands to be so run and marked as to include some two hundred and sixty acres of land belonging to the plaintiffs, and caused the hard-wood timber on his said lands to be estimated up to said line and caused said line so run and marked to be pointed out as his line to J. H. Ryder, acting for Scatcherd & Son, to whom he (Powell) had sold said hard-wood timber, and that said purchasers by reason of said acts of Powell cut the timber up to said line and paid him the stumpage for the timber so cut on plaintiffs’ land, or any portion of it, he (Powell) would be liable to the plaintiffs as a co-trespasser, with the party or parties who actually cut the timber.” The court answered this point in the negative. From, an examination of the general charge we understand the reason for this ruling to be that the action is brought under a statute which is penal in its character, and must not therefore be extended to any case not clearly within its provisions. The correctness of the rule thus invoked by the court below is beyond question, but its applicability in this case is more than doubtful.

The act of 1824 gives treble the value of timber cut and converted, to be recovered against “ any person who shall cut down or fell or employ any persons to cut down or fell any timber trees growing upon the land of another, without the consent of the owner thereof.” The trees for which the plaintiffs seek to recover were cut down upon the land of another, and without the consent of the owner. The only question is, Who are the principals in the trespass ? Ryder and his employees did the actual felling of the trees, but they had no interest in the timber; no control over it, and no power to convert it. They were employed by Scatcherd & Son, who were not personally upon the ground, but who directed the movements of their employees. But how came Scatcherd & Son upon the close of the plaintiffs ? They, or their employees were put into the actual possession of the land and the timber by Powell, their vendor. He caused the line to be pointed out, and said in legal effect, “ This land is mine, these timber trees are mine ; I will sell them to you, and you shall cut and remove them and pay me ten dollars per thousand feet for the cherry as it now stands on the stump.”

If .Ryder had cut the timber as a jobber for Powell, no one would question Powell’s liability as a principal. There would have been in that event a direct employment to fell the trees. But if, instead of hiring Ryder to cut the trees for him, ho had sold them to Ryder, thus securing his interest in them in advance, and leaving Ryder the risk and responsibility of the conversion of the trees into lumber, and the lumber into money, he equally encourages and directs the cutting. The terms of the contract are changed, but the relations of the parties to each other and to the timber trees remain the same. Powell is in either case the owner under whose title Ryder enters, and Ryder in either case fells the trees under the authority of Powell. The circumstance that Powell made his sale to Scatcherd & Son, who employed Rider, does not in any manner change his position or his liability. When the trees were pointed out, counted, estimated, and sold to Scatcherd & Son, to he cut and removed for an agreed price per thousand feet, the authority to cut down the trees was given in the most clear and explicit manner possible. It was the very purpose of the sale, and by the terms of the written contract they were bound to cut the trees and remove them within three years, or lose their title to them, after having paid the price fixed according to the estimate. They were bound absolutely to pay for the whole of the timber, at the quantity estimated and at the price fixed in the contract, and they were distinctly authorized to cut and remove it. If Mr. Powell had gone upon the land with Scatcherd & Son’s agent and said in so many words, “ These trees are mine, I sell them to you at ten dollars per thousand as they stand, and I authorize you to cut them down, manufacture, and remove them,” such direction would- have been no clearer, nor would it have made his position as a principal in the trespass any more apparent than does the contract of sale.

It is not contended that Powell would not be liable, if this was the common law action of trespass quare clausum fregit; but it seems to be thought that the same acts which would make him a principal, if the action was in the common law form, will afford no basis for liability under the statute. This is a mistake. Powell would be a principal in the common law action, not because he cut the trees with his own hands, but because he caused and directed the cutting. Qui facit per alium facit per se. For the same reason he is a principal in the trespass when the action is under the statute. Whether the axe be used by himself, by Ms employee, Ms vendee, or one occupying no contract relation to Mm, is immaterial, for he cuts the trees who causes them to be cut: Welsh v. Cooper, 8 Pa. 217; Fox v. Northern Liberties, 3 W. & S. 103. In the latter case it was said that a municipal corporation could become a trespasser by previously authorizing or subsequently ratifying the trespass of its officer. It is an elementary rule that he who procures a trespass to be committed is liable with those who commit it, and it has been often recognized in our cases: McMurtrie v. Stewart, 21 Pa. 322; Welsh v. Cooper, supra; Frantz v. Lenhart, 56 Pa. 365; Deal v. Bogue, 20 Pa. 228.

There is no hardship involved in the application of the rule to this case, for in good conscience he should bear the consequences of an act who caused or procured it to be, done. Ryder, and the laborers who actually felled the trees, had no interest in the matter beyond their wages, and they did what their employers directed and because they directed it. Their employers claimed no title to the land on which the trees were standing, but were put in possession by Powell, under a title which he asserted was in himself; and they directed the trees to be cut, because Powell bad sold them as they stood for that very purpose, and as the legal and logical effect of such sale, had said, “ These trees are mine ; 1 sell them to you, to cut down and remove, and yon must do it within three years.” The mistake was Powell’s, and out of that mistake all the consequences have come. He sold what he did not own, and took pay for it. He put his vendees on the ground to cut the trees. By his contract he authorized and directed the work done under it, and ho has no more reason in good conscience, than he has right at law, to object to being beld for the consequences of his own acts. If he had not done the acts enumerated in the point, no trespass would have been committed and no action would have been brought. The point should have been affirmed.

The judgment is now reversed, and venire facias de novo awarded.