State v. Smith

Foster, J.

The defendants were authorized by the land agent to guard certain lots reserved for public uses in Silver Ridge Plantation against trespassers. They had no right or authority to permit or sell timber or other property from these public lots. As assessors of that plantation in 1879, supposing they had such right, after exploring the lots, they permitted all the hemlock bark on one of said lots to one St. John for one hundred dollars. The permittee assigned his contract to Shaw Brothers, who, during that and the three following years, cut down the hemlock and carried away the bark, leaving the trees.

Two weeks after the first permit the defendants by another writing signed by them, permitted all the growth on these public lots, subject to the contract assigned to Shaws, to Jesse S. Smith, one of their own number, for five hundred dollars, but which was never paid. Smith thereafter assigned his contract to one Johnson who cut and carried away, during the years named spruce and cedar timber and removed the hemlock trees left by the Shaws. In all the lumbering operations upon the lots Smith acted as scaler.

For the trespasses committed by the Shaws and Johnson, the plaintiff claims to hold the defendants personally liable; and the real question at issue is whether they are liable or not. We are satisfied that they are liable. This action is for trespass to the real estate, with a count de bonis for the timber and bark carried away, under R. S., o. 5, § 10, which permits suits in favor of the state to be brought in any county. It is undisputed that the title to the lots in question is in the plaintiff, as well as the possession thereof through the land agent who, by virtue of § 15 of the same chapter, " shall have the care of the reserved lands in all townships or tracts until they are incorporated and the fee becomes vested in the town.”

The defendants not only entered upon and explored the lands, but they authorized the cutting and removal of the timber and bai’k. Whatever may have been their intention is immaterial in this suit. If what they did in authorizing others to enter upon and remove the timber and bark from the lots naturally and ordinarily produced the acts complained of, which constitute the alleged trespasses, then they are liable in trespass for those acts. Sutton v. Clark, 6 Taunt. 29; 1 Waterman on Tres. § 62. The principle upon which one man is held liable for the acts of others is thus laid down in Guille v. Swan, 19 John, 382, where the court say : " To render one man liable in trespass for the acts of others, it must appear either that they acted in concert, or that the act of the individual sought to be charged, ordinarily and naturally produced the acts of the others.”

In Wall v. Osborn, 12 Wend. 39, the same principle is recognized, and the doctrine affirmed that one who does an unlawful act is considered as the doer of all that follows, and the prime mover of the damages that result, and accordingly it was there held, that where a party sold a mill standing upon the lot of his neighbor, and appointed a day for the purchaser to take it away, promising to aid him in its removal if assistance was necessary, and the mill was subsequently taken down and removed by the purchaser, that the vendor was liable to an action of trespass, although there was no proof of his being-present or aiding in the removal of the building. " By the act of selling the plaintiffs’ property,” remarks Savage, C. J., "the defendant assumed a control over it, and by appointing the time for the removal of the mill he virtually directed the purchaser to take it away.”

So in Morgan v. Varick, 8 Wend. 594, the defendant sold the plaintiffs’ steam engine and requested the purchaser to take it away, and he was held liable in trespass, the court there holding that any unwarrantable and unauthorized interference with the property of another will constitute the party a trespasser. And it has been held that if one sell timber upon the land of another, and the purchaser cut and remove it, the seller is a trespasser. Dreyer v. Ming, 23 Miss. 434.

The party is held liable in such cases on the principle that he who does an act by another does it himself; it may not be the ■work of his hands, yet it is the result of his wrill and his purposes which are the efficient cause of the operations conducted by others. The case of Scott v. Shepard, 2 W. Black. 892, where the defendant started the lighted squib, and it was thrown, into a market house where a large concourse of people had assembled, is a strong instance of the responsibility of an individual who was the first, though not the immediate, agency in producing an injury. Another instance is the case of Guille v. Swan, supra, where the defendant ascended in a balloon which descended a short distance from the place of ascent into the plaintiff’s garden, and the defendant calling for help, a crowd of people broke through the fences into the plaintiff’s garden beating and treading down his vegetables and flowers; it was held that inasmuch as the act of the defendant would ordinarily and naturally draw the crowd into the garden, he was answerable in trespass for all the damage done to the garden.

In the case now before us the defendants without right or authority assumed dominion and control over property belonging to the plaintiff. They authorized the cutting and removal of the timber and bark from the public lots, which they had no right to do. The fact that they supposed they had such right renders them none the less trespassers. As was said by SpeNCeb, C. J., in Guille v. Swan, supra: "The intent with which an act is done, is by no means the tost of the liability of a party to au action of trespass.” To be sure the permits were not such as could lawfully be given under the statute in relation to timber upon public lots, inasmuch as the right to grant permits lies with the laud agent and with no one else. Nevertheless they may be effectual for the purpose of establishing the defendants’ liability in authorizing the commission of those wrongful acts which are the basis of this suit. Nor do they alone serve in rendering the defendants liable as authorizing the trespasses, but the defendants in giving these permits must be held to have ordinarily and naturally produced the acts which constitute the alleged trespasses — the cutting and removal of the timber and bark from the lots.

In Herring v. Hoppock, 15 N. Y. 413, a bond of indemnity had been given to the officer, and the question was whether the defendant, by giving the bond of indemnity, had rendered himself liable in trespass for the acts of the officer; and it was there held that the giving of the indemnity naturally produced the act of the wrongful sale of the property by the officer, and must be regarded as the principal if not the sole cause of it.

Also in Lovejoy v. Murray, 3 Wall. 1, the court held that in the giving of a bond of indemnity whereby the officer was induced to hold property not subject to attachment made the party a joint trespasser with the officer as to all that was done with the property afterwards.

The permits in this case were in effect not mere licenses, but were executory contracts for the sale of the timber and bark therein named, with permission to enter and remove the same. Banton v. Shorey, 77 Maine, 51. Such undoubtedly was the understanding of the defendants, as well as of those to whom they were given, and who are termed "grantees.” The defendants received from the permittees pay for their services in exploring the lots before the permits were given; and Smith, one of the defendants, was scaler during all the lumbering operations.

This case is unlike Robinson v. Vaughton, 8 C. & P. 252, (34 E. C. L. 376) cited by the counsel for the defendants. In that case, which was trespass for breaking and entering the plaintiff’s close with a gun and pointer in pursuit of game, there was no such dominion over the property and unauthorized acts of ownership as in this case, and yet the court there say that if one party authorized and ordered the other to go upon the premises, they would be joint trespassers.

Numerous cases are cited by the learned counsel for the defendants to the effect, as he claims, that they cannot be held responsible for the acts of those who cut and removed the timber, inasmuch as those parties sustained the relation of contractors rather than that of servants or agents of these defendants. Undoubtedly that position might be tenable in a case where the defendants were sought to be hold for the negligence of such persons in the performance of a legal act. Such is the doctrine of the cases cited. And the case of Eaton v. E. & N. A. R. R. Co. 59 Maine, 520, to which our attention has been particularly called, recognizes the distinction, in this class of cases, between the performance of a legal and an illegal act, holding, in accordance with the authorities, that in the execution of a wrongful or illegal act, the employer is not exempt from liability but is responsible for the wrong done by the contractor or his servants. In that opinion AitletoN, C. J., says: " Though a person employing a contractor is not responsible for the negligence or misconduct of the contractor or his servants in executing the act, yet if the act is wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons for damages sustained by such wrong doing. Ellis v. Sheffield Gas Consumer Co. 75 E. C. L. 767. So if, in the present case, the contract was to do a wrongful act, the defendants must be held liable for damages occasioned thereby. Or, if the defendant’s engineer directed the contractors to do what was illegal and unauthorized, as by working outside of the limits of the true location, the defendants must be held liable for any trespasses thus committed.”

So one who directs or authorizes a trespass to be done is liable. Bacheller v. Pinkham, 68 Maine, 255.

"The general rule is, that in actions of tort all persons concerned in the wrong are liable to be charged as principals.” Tiudali, C. J., Cranch v. White, 1 Bing. N. C. 414 (27 E. C. L. 440) ; Cram v. Thissell, 35 Maine, 88.

The defendants in this case, whatever may be their legal relation to the parties actually cutting and removing the timber, must be considered as having authorized those wrongful and illegal acts which were but the natural and ordinary consequences of their own wrong doings.

Inasmuch as we have stated the grounds upon which the defendants have rendered themselves liable in this action, it is unnecessary to consider in detail all the objections set up in defence.

Therefore the only remaining question is that in relation to damages. By the terms of the report, that, is to bo only the current market value of the stumpage, which is admitted to be two thousand eight hundred and thirty-seven dollars, for the timber and bark; and to which sum, as by the report, is to be added the sum of two hundred ninety-seven dollars and seventeen cents as interest, making in all three thousand one hundred thirty-four'dollars and seventeen cents-.

Judgment for the plaintiff for §3,134.17.

Peters, C. J., Walton, Daneorth, Virgin, Lxbbey, Emery and Haskell, JJ., concurred.