Davis v. Cotey

• Court: Vermont Supreme Court
• Writing for the Court: START, J.
• Citation: Davis v. Cotey, 70 Vt. 120, 39 A. 628 (Vt. 1897)
• Decision Date: 14 October 1897
• Parties: DAVIS v. COTEY et al.

39 A. 628

70 Vt. 120

DAVIS

v. COTEY et al.

Supreme Court of Vermont. Addison.

Oct. 14, 1897.

Exceptions from Addison county court; Taft, Judge.

Action by Joseph W. Davis against Lewis C. Cotey and others, on the statute, to recover treble damages for cutting timber. Plea, general issue. There were verdict and judgment for plaintiff, and defendants except. Affirmed.

F. L. Fish, for plaintiff.

Button & Button, for defendants.

START, J. This action is brought under V. S. § 5020, to recover treble damages for cutting timber. This statute, in so far as it relates to timber, provides that, if a person cuts down, destroys, or carries away timber standing, lying, or growing on the land of another person, without leave from the owner of such land, the party injured may recover of such person treble damages in an action on this statute. But if, upon trial, it appears that the defendant acted through mistake, or had good reason to believe that the timber was on his land, the plaintiff shall recover single damages only, and costs. In making out a case under this statute, the plaintiff is only required to prove in the opening that the defendant, without leave, cut timber upon his land. He is not required to show that the defendant acted willfully or maliciously, or that the defendant did not act through mistake, or that he did not have good reason to believe that the timber was on his land. On such a showing, the plaintiff is entitled to recover treble damages. In the absence of any showing either way respecting mistake or good reason to believe, treble damages are recoverable by force of the statute. The statute expressly provides that the party injured may recover treble damages; but if it appears that the defendant acted through mistake, or had good reason to believe that the timber was on his land, only single damages are recoverable. If the defendant would reduce the damages from treble to single, he must show that he acted through a mistake which was not the result of his negligence or misconduct,—that is, such a mistake as a careful and prudent man would ordinarily make under like circumstances; or that he had good reason to believe that the timber was on his land,—that is, such reason as would lead a man, while in the exercise of ordinary care and prudence, to thus believe. He cannot recklessly and negligently omit to see and observe those things that would lead him to a right conclusion and to a right action, and then be heard to say that he had an...