Guild v. Prentis

• Decision Date: 20 January 1910
• Citation: 74 A. 1115,83 Vt. 212
• Parties: GUILD et al. v. PRENTIS et al.
• Court: Vermont Supreme Court

74 A. 1115

83 Vt. 212

GUILD et al.

v. PRENTIS et al.

Supreme Court of Vermont. Windsor.

Jan. 20, 1910.

Exceptions from Windsor County Court; Alfred A. Hall, Judge.

Action by Warren W. Guild and another against John W. Prentis and another. Verdict and judgment for plaintiffs, and defendants except. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Charles Batchelder and F. H. Spaulding, for plaintiffs.

Fred C. Davis and E. R. Buck, for defendants.

HASELTON, J. This action was brought under P. S. 5842, to recover treble damages for the cutting of trees on land held by the plaintiffs under a lease. The land in question was a small tract on the banks of the Connecticut in the town of Springfield, of which the plaintiffs had a 10-year lease, and on which they had erected a summer cottage. At the time of the cutting of the trees, hereinafter referred to, the plaintiffs' lease had about 8 years to run. The owner of the land in fee simple at the time of the lease, after giving the same, conveyed to the defendants land which included that in question, and thereafter, and before the cutting of the trees, the defendants had conveyed the fee of the same land to another, with the reservation to themselves of the timber trees on the land, and the right to cut and remove the same. The defendants entered on the land in which the plaintiffs had a leasehold estate, and cut down and removed trees which, as the evidence on the part of the plaintiffs tended to show, afforded shade for their summer cottage above mentioned. The evidence as to the facts of the cutting complained of was received under objection and exception on the part of the defendants. The objection was that the plaintiffs, being lessees, could not recover in this action. At the close of the evidence the defendants moved for a verdict, claiming that the plaintiffs, being lessees, could not recover in this action. The motion was overruled, and the defendants excepted. The jury made a special finding to the effect that it did not appear that in cutting the trees the defendants acted through mistake, or had good reason to believe that they had a right to cut the trees. The jury returned a general verdict for the plaintiffs, and assessed the actual damages at $100. Upon the verdict and the special finding of the jury judgment was rendered for the plaintiffs for treble the amount of the actual damages. To this judgment the defendants excepted.

The statute referred to provides that: "If a person cuts down, destroys, or carries away trees placed or growing for use, shade or ornament, or timber, wood, or underwood 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 trees, timber or underwood were on his land, the plaintiff shall recover single damages only, and costs." The defendants cut the trees upon the land of another, and they cut them without leave from the owner of the land. If the lessees are to be regarded as owners, the cutting was done without their leave. As to the owners of the fee, they could give no leave to cut the trees during the tenancy, and when the defendants conveyed the lands with the reservation of a right to cut the trees, they reserved a right which they could not exercise until the expiration of the tenancy.

The main question is whether lessees are entitled to maintain this action, and to recover treble damages therein. The right of action is given to "the party injured"; but there is no doubt that the party injured must be in some proper sense an owner, and not a mere possessor. Davenport v. Newton, 71 Vt. 11, 27, 42 Atl. 1087. The word "owner," as applied to real estate, may designate the owner of the fee, or the owner of a less estate, as a lessee for a term of years, or any rightful proprietor, and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied, and when used in a statute, the obvious nature and purpose of the statute may indicate its meaning. Payne v. Sheets, 75 Vt. 335, 55 Atl. 650. Under many statutes a lessee is treated as an owner. Baltimore etc., R. Co. v. Walker, 45 Ohio St. 577, 10 N. E. 475; Gillagan v. Board, 11 R. I. 258; Dutro v. Wilson, 4 Ohio St. 101; Parker v. Minneapolis, etc., R. Co., 79 Minn. 372, 82 N. W. 673; Lister v. Labley, 7 A. & E. 124, 34 E. C. L. 86; Schott v. Harvey, 105 Pa. 222, 227, 51 Am. Rep. 201; State v. Wheeler, 23 Nev. 143, 44 Pac. 430; Larimer, etc., Co. v. Zimmerman, 4 Colo. App. 78, 34 Pac. 1111; Higgins v. City of San Diego, 131 Cal. 294, 308, 63 Tac. 470, 470.

In Davenport v. Newton, 71 Vt. 11, 42 Atl. 1087, the question of what ownership one must have to entitle him to recover under this statute was not in the case, and the court expressly avoided any manifestation of opinion in regard to that matter, and that question has not been decided in this state. In determining the matter it is to be noted that our statute in giving treble damages to the owner designates him as "the party injured," and not otherwise, and so the statute gives its own definition of the word "owner," a definition inconsistent with the idea of confining the remedy to owners in fee simple. As to the liberal construction to be given to such a phrase as "the party injured," see Colston v. Bean, 77 Vt. 40, 58 Atl. 795. In the statute there referred to, and in that now under consideration, the phrase "person injured" or its equivalent "is used advisedly and wisely, and the statutory provisions are of a clear and effective character." Here the plaintiffs were tenants for a term of years, and were parties injured in respect to their rightful proprietorship and dominion, and, as owners of their leasehold estate, were entitled to the redress and protection against wrongdoers provided by the statute. To hold otherwise is inconsistent with both the language and the spirit of the statute, and is out of harmony with the general purpose of the chapter of the Public Statutes, of which the statute in question forms a part. It matters not that the injury to the plaintiffs' estate was also an injury to the reversion. Higgins v. Farnsworth, 48 Vt. 512, 514; Jeffer v. Gifford, 4 Burr. 2141; McConnel v. Kibbe, 33 Ill. 175. 85 Am. Dec. 265. The fact that the plaintiffs were tenants for a term of years, and did not own the fee, affected the amount of their actual damages, but when their actual damages had been ascertained, their right to have them trebled was not affected by the nature of their estate.

In some states the right of action in cases of this sort is given in terms to the "owner" of the land, and the statute uses no words to indicate the sense in which the word "owner" is used. In such states, too, the action to recover treble damages is generally regarded as a penal action. And so, in view of the language of the statute and the nature of the action as viewed by the...