Cushman v. Oliver

• Citation: 81 Ill. 444,1876 WL 10021
• Parties: WILLIAM H. W. CUSHMANv.FRANKLIN OLIVER.
• Decision Date: 31 January 1876
• Court: Illinois Supreme Court

81 Ill. 444

1876 WL 10021 (Ill.)

WILLIAM H. W. CUSHMAN

v.FRANKLIN OLIVER.

Supreme Court of Illinois.

January Term, 1876.

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding. Mr. L. E. PAYSON, for the appellant.

Messrs. WILLIAMS, BURR & CAPEN, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was debt, under the statute to prevent trespassing by cutting timber, originally commenced in the Livingston circuit court, by William H. W. Cushman, against Franklin Oliver, and taken by change of venue to the county of McLean, where the cause was tried by the court without a jury, which resulted in a judgment for the defendant. To reverse this judgment this appeal is taken by the plaintiff.

It appears, from the record, that the land on which this timber stood was granted to Livingston county as swamp and overflowed land. It was a tract containing forty acres, which appellee, some ten years before the trespasses complained of, had agreed to purchase from the county, but having failed in his payments and in the performance of other conditions of the contract, the county, through the proper authority, declared the contract forfeited, and, in 1865, sold and conveyed the same, by deed, to appellant.

The trespasses complained of were committed in January, 1866, and the great preponderance of the evidence is, that the persons doing the cutting were brought on the ground by appellee for the express purpose of destroying the timber, he knowing, at the time, that appellant had the legal title to the land. The contract with the choppers was, they were to have one-third of the wood and appellee two-thirds; and one witness, Miller, testified that appellee's son came for him to go to the lot, and when he went he found ten or twelve men chopping under the direction of appellee. This witness hauled two days under this arrangement, and delivered two-thirds of the wood at appellee's house; the other third he took home. The testimony of this witness, of Ellis, and of Roberts, greatly outweighs that of appellee, who testified he had nothing to do with these choppers, and did not receive two-thirds of the wood. The proof on these points is all against him. From the testimony, we are strongly inclined to believe the act of appellee was wanton, wilful and malicious, and his claim of right had no foundation, as he well knew. The trespasses were committed by his direction and command.

It was said,...