Achey v. Hull
| Decision Date | 30 November 1859 |
| Citation | 7 Mich. 423 |
| Court | Michigan Supreme Court |
| Parties | Joseph Achey and another v. William Hull |
Heard November 3, 1859; November 4, 1859 [Syllabus Material] [Syllabus Material] [Syllabus Material]
Error to Wayne circuit.
Hull brought action in justice's court against Joseph Achey and William Lapplar, and declared in trespass, as follows:
"The plaintiff complains of the defendants of a plea of trespass for that the defendants, on the first day of December, A. D. 1856, and on divers other days and times between that day and the commencement of this suit, with force and arms, and contrary to the provisions of chapter 3, of title 111, of the Revised Statutes of this state, entitled, "Of trespasses on lands," did cut down and carry off, without leave of the said plaintiff, fifty oak, and fifty ash, and fifty elm, and fifty other trees, of great value, to wit: of the value of one hundred dollars, then and there standing on the land of the plaintiff, to wit: known as the Conolly farm, in the town of Ecorse, county of Wayne, and state of Michigan, being private claim number fifty, patented to John Conolly, whereby the defendants have forfeited three times the amount of the plaintiff's damage, to the plaintiff's damage one hundred dollars."
The defendants pleaded the general issue, with notice that the title to lands would come in question, and the cause was transferred to the circuit court, pursuant to the statute, and came on for trial at the April term, 1858.
After swearing the jury and one witness in the cause, but before any question had been put to the witness, the defendants objected to any evidence being given under the declaration, upon the ground that it contained but one count, and that upon a statute which never existed in the state of Michigan, to wit: Chapter 3 of title 111 of the Revised Statutes of this state.
The court overruled the objection, and admitted the testimony, and defendants excepted.
Edward Cicotte testified that he knew the bounds of the Conolly farm (so called), in Ecorse, which had been in plaintiff's possession for four or five years. In the spring of 1857 saw defendants cutting staves on the rear of the farm. There was a space of three acres cleared, and other parts had been stripped of the best oak timber for staves. Witness saw seven trees cut and barked, which defendant Achey admitted he had cut. The rear of the farm is not fenced in at all; there are one hundred acres or more of the farm on the front, on the Rouge, fenced in, and a house on it.
Antoine Druyer testified that he cut staves on the Conolly farm in the spring of 1857, in the employment of defendant Lapplar. Defendant Achey had a shanty or small house on the land, where he lived with his family and horses.
George Beaubien testified that he saw the defendants cutting staves; that Achey lived on a clearing of three acres, which defendants had cleared and fenced; besides which they had run over about fifteen acres, which was not fenced; that young Achey, son of defendant, used to live in the shanty, and was put there by plaintiff; but left in the spring of 1857, and went to the west, and his father moved in. The son had cleared the most of the three acres; the father finished the clearing, and fenced it.
Shubael Conant testified that he had possession of the farm since 1820, as agent of A. & A. Lawrence, and caused one undivided half of it to be conveyed to the plaintiff, in June, 1853, and put him in possession; had been with plaintiff on the place, and seen his cattle and sheep thereon.
E. C. Walker testified that, as agent of Reuben Davis, he gave plaintiff possession of the other undivided half, in 1853, and that Hull occupied as tenant of Reuben Davis.
John Copland testified, that he owned land adjacent to the Conolly farm. Saw defendants cutting staves; where they were cutting was two and a quarter miles from the front of the farm on the Rouge; there was no fence except around three acres, where defendant Achey's house was; the men were at work in the woods.
Antoine Beaubien, a witness on the part of the defendants, testified that defendant Achey moved into the house about a year ago, and put on an addition. Nobody was in possession there at the time. Achey at once cleared up the three acres which had been cut over before, and fenced it on two sides.
Thomas Henderson, a witness on behalf of the defendants, testified that Achey went into possession of the back end of the farm about April 1, 1857; that he went in as a squatter, supposing the land to be United States lands; witness does not know of any trespass on the land until after Achey went into possession. Achey was on the land when the trespasses were committed.
The above is the whole testimony in the case in regard to the possession of the farm. The defendants asked the court to charge the jury that, under the testimony, the defendant Achey stood in relation to the premises as the disseizor of the plaintiff, and that the plaintiff could not maintain his action of trespass for cutting and carrying away timber until he had gained possession of the premises by re-entry. The court refused so to charge, but did charge the jury, that the possession of the premises by the defendant Achey, as appeared from the testimony, did not amount, in the law, to a disseizin of the plaintiff, and that the plaintiff was entitled to maintain his action of trespass; to which refusal and charge the defendants excepted.
The defendants further asked the court to charge the jury, that the statute under which the action is brought is a penal statute, and that the measure of damages was only the value of the timber cut off, and that they could not take into consideration damages done to the land by reason of cutting down said trees; but the court refused so to charge, and did charge that they should take into consideration the damage to the land, in making up their verdict--to which ruling and charge the defendants excepted. The defendants further asked the court to charge the jury that, as a matter of law, the possession of a part of a tract of land by the owner is the possession of the whole tract only so long as there is no other person in the actual adverse possession of any part; and that as soon as any other person takes possession of any part, either with or without title, the former person loses the possession of that part, and can not maintain trespass for any act done on such part while he is thus out of possession of it; and that if they believe, from the testimony, that defendant Achey was in the actual possession of that portion of the farm in question upon which the trespasses were committed, at the time they were committed, plaintiff could not maintain his action. The court refused so to charge, but did charge that, under the testimony, the defendant's possession was that of a mere trespasser, which was not sufficient to deprive the plaintiff of his right to maintain his action; to which refusal and charge the defendants excepted.
The jury rendered a verdict for the plaintiff, and defendants brought error.
Judgment affirmed.
J. E. Bigelow and J. M. Howard, for plaintiffs in error:
1. The misrecital of the statute was fatal: Bac. Abr. "Statute," L. 5; 8 Cow. 115; Ld. Raym., 1224.
2. The facts proved amounted to a disseizin of plaintiff: 4 Mass. 416; 6 Mass. 229; 14 Mass. 200; 15 Mass. 495; 8 Conn. 440; 9 Conn. 114; 3 Penn. 132; 6 Pick. 172; 10 Pet. 442; 11 Pet. 52; 16 Barb. 427; 9 Cow. 552. Before re-entry, therefore, he could have no action of trespass, except for the first entry: 10 Pick. 161; 17 Mass. 299.
The statute is penal, and no damages are recoverable beyond the value of the timber cut and carried away: 8 Johns. 342; 1 Cow. 584; 25 Wend. 420. And there is no allegation in the declaration of any damage to the land.
3. The possession, by the owner, of part of a tract of land is constructive possession of the whole only so long as no person is in the actual adverse possession of any part. When there is such adverse possession, the former can not bring trespass for an injury to such part: 4 Dev. & Bat., 164.
Walker & Russell, for defendants in error:
1. It was unnecessary to cite the chapter of the statute at all. It was sufficient to have referred to it in some general manner 3...
To continue reading
Request your trial
-
Warren W. Guild Et Al v. John W. Prentis
...viewed by the courts the word "owner" is construed to mean "owner in fee simple." Such a construction of such a statute is found in Achey v. Hull,7 Mich. 423, a referred to in Davenport v. Newton,71 Vt. 11, 42 A. 1087. In the latter case two Illinois decisions are referred to, but they were......
-
Von Zellen v. Westrom, 31.
...can only be had by an allegation of ownership of land and proof of title unless such title is admitted by defendant, citing Achey v. Hull, 7 Mich. 423;Clark v. Field, 42 Mich. 342, 4 N.W. 19, 21, and Maynard v. Reynolds, 137 Mich. 42, 100 N.W. 174, 175. In the latter case the majority opini......
-
Davenport v. Newton
...Jarrot v. Vaughn, 2 Gilman, 132; Abney v. Austin, 6 Ill. App. 49. A similar statute in Michigan has received the same construction. Achey v. Hull, 7 Mich. 423. In Mississippi it is held that, as the cutting of trees is an injury to the freehold, the plaintiff claiming the statutory penalty ......
-
C. H. & H. J. Davenport v. Moses Newton,
...Jarrot v. Vaughn, 7 Ill. 132; Abney v. Austin, 6 Ill.App. 49. A similar statute in Michigan has received the same construction. Achey v. Hull, 7 Mich. 423. In Mississippi it is held that as the cutting of trees is injury to the freehold, the plaintiff claiming the statutory penalty must be ......