E.G. Beechwood Ice Co. v. American Ice Co.
| Decision Date | 09 February 1910 |
| Docket Number | 44. |
| Citation | 176 F. 435 |
| Parties | E. G. BEECHWOOD ICE CO. v. AMERICAN ICE CO. |
| Court | U.S. District Court — District of Maine |
Benjamin Thompson, for plaintiff.
Charles F. Johnson, for defendant.
In this action of trover the plaintiff seeks to recover the value of 4,000 tons of ice, alleged to have been willfully and intentionally converted by the defendant to its own use, at New York City, on the 9th day of August, 1906. The plea is the general issue. The parties have filed a written stipulation, waiving a jury.
The case shows that the ice in question was cut from the upper part of Barberry creek, an indentation of Portland Harbor upon the South Portland side. The defendant company owns the land on both sides of this creek near the outlet. In order to make it available as an ice pond, under legislative authority, the former owner of the privilege, and a predecessor in title to the defendant company, built a dam across the mouth of the creek, near the Boston & Maine Railroad location, in such a way as to exclude the salt water, and create a pond on this property of about 18 acres in extent. Above this property is land owned by Thomas B Haskell. Before the dam was built at the outlet of the creek the Haskell portion of Barberry creek had been used for a long time for the purpose of harvesting ice; and, when so used, a dam was maintained across the creek near the old Kennebec Railroad crossing, which was very near the dividing line between the Haskell and the American Ice Company properties. In consequence of the dam at the outlet, built by the defendant company, the fresh water flows back over the Haskell property to the depth of five or six feet, and makes a pond over this property covering an area of about 10 acres. In 1895 Thomas B. Haskell entered into a lease or agreement with the predecessor of the American Ice Company, giving the company the right to flow the land with fresh water, together with the right to build and maintain its dam at the outlet and to take off the ice for five years. Since the expiration of the lease the defendant company has never claimed a right to the ice on the Haskell part of the pond, and does not now claim it. In 1904 Mr. Haskell leased to the plaintiff corporation the exclusive right to take off the ice from his property for five years.
The plaintiff's title to the ice cut in 1906 is unquestioned. Although the dam which caused the flowing of the property was not on the Haskell property, but was at the outlet of the pond, this fact does not affect the title of Haskell's lessee to the ice formed on this part of Barberry creek. The plaintiff company had the right of possession of the land, of the water over the land, and of the water after it had frozen into ice. Barrett v. Ice Co., 84 Me. 155, 156, 24 A 802, 16 L.R.A. 774; McFadden v. Ice Co., 86 Me. 319, 29 A. 1068; Paine v. Woods, 108 Mass. 160, 173; Stevens v. Kelley, 78 Me. 445, 449, 6 A. 868, 57 Am.Rep. 813; Richards v. Gauffret, 145 Mass. 486, 488, 14 N.E. 535; U.S. v. Loughrey, 172 U.S. 206, 19 Sup.Ct. 153, 43 L.Ed. 420. Four thousand tons of ice were taken by the defendant company from this property in March, 1906. The taking is not denied. A sharp contention is made as to the character of the taking.
1. Was the taking of the ice on the part of the defendant company a willful trespass? The defendant says that the ice was taken with the honest belief on its part that it had rights in the ice on the Haskell part of Barberry creek. It therefore claims that the taking was done in good faith, under the reasonable belief that its conduct was rightful. The fact of taking having been shown, the burden of proving good faith rests upon the defendant. Trustees of Dartmouth College v. International Paper Co. (C.C.) 132 F. 92, 97. On the question of the character of the trespass, whether willful or not, there is a conflict of testimony. There is no necessity for discussing the evidence bearing upon this subject. The court comes to the conclusion that the defendant has not met the burden of showing good faith in the taking. There may be some question as to whether the original entry upon plaintiff's property by the defendant was with full knowledge that it did not have a right there. But from the whole evidence the court finds that afterwards, and before the removal of the ice, the defendant had unmistakable knowledge of plaintiff's ownership of the ice. The testimony shows it was warned not to continue to cut, and not to remove what had been cut. The whole evidence leads me to the conclusion that from the first the defendant unreasonably refrained from inquiring as to the nature of its supposed rights. I think it may be said in this case, as was said in the International Paper Company Case, to which I have referred, that the defendant acted without reasonable care and investigation. The inevitable conclusion of the court, drawn from the full evidence, is that the defendant's trespass late in March, 1906, was willful.
2. The plaintiff made his demand upon the American Ice Company on August 9, 1906, in New York City, and brought suit alleging a conversion of the ice in New York City on that day. This is an action in trover, the gist of which is the conversion by the defendant of goods to which the defendant had then and there the right of possession. The plaintiff invokes the theory of the law that in unlawfully taking the plaintiff's ice the defendant did not acquire any title to it, or ownership in it; but that, on the contrary, the plaintiff still continued to own the property, and hence had the right to retake it whereever it could be found; that if the plaintiff found the property in the city of New York it could there claim it, and there retake it, and could replevy it there if necessary; that it could do this, even though greater value had been put upon the property by a complete change in its form and character; and that if it could replevy goods, even though they had been changed and improved in their character, it might clearly make its demand and pursue its remedy by an action of trover, instead of by an action of replevin. This gives the plaintiff the right to determine the form of action which it shall adopt in order to secure redress for a willful trespass. The leading case in the federal courts upon the question of damages for willful trespass is Bolles Wooden Ware Company v. U.S., 106 U.S. 432, 1 Sup.Ct. 398, 27 L.Ed....
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