Emerson v. Beavaus

• Citation: 12 Mo. 511
• Parties: EDWARD D. EMERSON v. JOSEPH BEAVAUS.
• Decision Date: 31 October 1849
• Court: United States State Supreme Court of Missouri

12 Mo. 511

EDWARD D. EMERSON

v.JOSEPH BEAVAUS.

Supreme Court of Missouri.

October Term, 1849.

ERROR TO PIKE CIRCUIT COURT.

BUCKNER, for Plaintiff.

1st. It is submitted that the first count is based upon the statute. Rev. Stat. 1068, title Trespass. 2nd. It concludes, contra forman statuti, and in addition offense is brought within the terms of the statute. Lowe and Forsythe v. Harrison, 8 Mo. R. 850; 1 Chitty, 356; Beekman v. Chalmers, 1 Cowen, 585; 8 Johns. 345. 3rd. The verdict being found on this statutory count, the Circuit Court had no alternative, but to treble the damages, unless the evidence disclosed facts from which it could be inferred that defendant had probable cause to believe that the land was his own. Rev. Stat. 4, title Trespass; George v. Rook, 7 Mo. R. 149; Beekman v. Chalmers, 1 Cowen, 585.4th. There is no pretense that the land was defendant's, or that he acted under this impression. 5th. The reason given by the Circuit Court, for not trebling the damages, that the defendant supposed he was cutting on public land, finds no countenance either in the letter or spirit of the statute.

PORTER, for Defendant.

1st. The count upon which the verdict was found by the court sitting as a jury, was not good as a count under the statute, because it is not averred in said count, that the defendant had no interest or right in the trees cut down and carried away; it may be that the defendant had no interest in the land trespassed upon, and still that he had an interest or right in or to the trees cut thereon. Lowe and Forsythe v. Harrison, 8 Mo. R. 352, and it is averred only that he had no interest in the land, and not that he had no interest or right in the trees, of which the trespass is deprecated. 1st count of plaintiff's declaration. 2nd. Admitting that the count found for the plaintiff is good as a count under the statute, it is contended that the court below was warranted by the reason and spirit of the statute in rendering a judgment only for the damages assessed. It appears from the evidence that the defendant cut down and barked the trees on the land of the plaintiff, believing that the same was public land, and therefore, according to the custom of the country, sanetioned by universal public opinion, he was doing no wrong. If the timber had been cut on public land--such as defendant was credibly informed and believed it to be--the defendant would have been a trespasser only against ““Uncle Sam,” and the timber or bark taken away would have...