Brooks v. Bess

• Decision Date: 08 December 1937
• Citation: 195 A. 361
• Parties: BROOKS v. BESS.
• Court: Maine Supreme Court

195 A. 361

BROOKS

v. BESS.

Supreme Judicial Court of Maine.

Dec. 8, 1937.

Report from Superior Court, Somerset County.

Action of trover by Roger Brooks against Fred Bess. On report on an agreed statement of facts.

Judgment for plaintiff.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Gower & Eames, of Skowhegan, for plaintiff. Butler & Butler, of Skowhegan, for defendant.

HUDSON, Justice.

Report on agreed statement of facts.

This is an action of trover brought against a former road commissioner of Skowhegan for an alleged conversion of 35 cords of wood. The defendant caused this wood to be cut and removed from land within the exterior limits of a town way, of which the wrought portion was only 8 feet wide. The plaintiff owned the adjoining land.

It is conceded that "the defendant allowed the workmen to remove this growth from the premises to their respective homes and use the same for domestic purposes."

Also, that the purpose of cutting and removing the trees was to widen the wrought portion of the way so that it could be plowed by "a modern motor driven snow plow."

It is not claimed that the defendant did not have the right to cut and remove this growth.

It is well-established law that presumptively the adjoining landowner owns the soil to the center of the way. Subject to the easement of passage, he may cultivate the soil and take the herbage growing thereon. Dyer v. Mudgett, 118 Me. 267, 268, 107 A. 831. Also, see, Burr v. Stevens, 90 Me. 500, 503, 38 A. 547; Farnsworth v. City of Rockland. 83 Me. 508, 512, 22 A. 394; Wellman v. Dickey, 78 Me. 29, 30, 2 A. 133; Lynn v. Hooper, 93 Me. 46, 50, 44 A. 127, 47 L.R.A. 752.

"The public have no right in a highway, excepting the right to pass and repass thereon. Stackpole v. Healy, 16 Mass. 33 . 'Subject to the right of mere passage, the owner of the road is still absolute master.'" Stinson v. City of Gardiner, 42 Me. 248, 254, 66 Am.Dec. 281.

The town in which the road lies holds title to the easement as trustee for the traveling public. Inhabitants of Charlotte v. Pembroke Iron Works, 82 Me. 391, 393, 19 A. 902, 8 L.R.A. 828.

Nothing in this record rebuts the presumption of centerline ownership. As owner of the soil, the title to these trees was in the plaintiff, subject, however, to the right of cutting and removal in order to make possible the enjoyment of the easement.

The New Hampshire court has declared: "Generally they" (meaning trees by the roadside) "are the property of the adjoining landowner. In the absence of evidence transferring the title out of him, it is to be assumed such trees are his property. In him is vested the right of property and of beneficial enjoyment. The public has no right to the trees or to use them, even if necessarily removed, to construct or maintain the way. For any interference with his possession or right of possession in such trees the adjoining owner has his action." McCaffery v. Concord Electric Company, 80 N.H. 45, 114 A. 395, 396, 17 A.L.R. 813.

Also, in Baldwin et al v. Wallace, 84 N.H. 71, 146 A. 90, it is stated: "As to everything except the public right of passage and the incidents thereto, the land was the property of the plaintiffs.' * * * They have a right to recover for the defendants' trespass thereon and to be paid the value of the trees he cut and carried away."

As the plaintiff owned the trees before they were cut and removed, the wood therefrom was his when converted. It is not contended that the acts of the defendant in allowing the workmen to take and consume this property did not constitute conversion.

But the defendant claims a defense under section 79 of chapter 27, R.S.1930....