Maglathlin v. Isaacson

• Decision Date: 29 December 1953
• Citation: 149 Me. 368,102 A.2d 864
• Parties: MAGLATHLIN et al. v. ISAACSON et al.
• Court: Maine Supreme Court

Page 864

102 A.2d 864

149 Me. 368

MAGLATHLIN et al. v. ISAACSON et al.

Supreme Judicial Court of Maine.

Dec. 29, 1953.

Seth May, Auburn, for plaintiffs.

John A. Platz, Lewiston, for defendants.

Before MERRILL, C. J., and THAXTER, FELLOWS, JJ., and MURRAY, A. R. J., and WILLIAMSON and TIRRELL, JJ.

THAXTER, Justice.

This was an action of trespass for cutting certain timber on a farm owned by the plaintiffs. The defendants justify such cutting under a lease given by the plaintiffs to the defendants. The property leased on which the defendants claim the right to cut is described in the lease as the homestead farm formerly of Philomen A. Bradford, deceased, and the herein leased land being bounded and described as follows:

'Northerly by lands now or formerly owned by Sanford Fiske, Octavia Shaw, Vance Merrill, J. F. Jennings, and Joshua M. Webb, now or formerly of James A. Jones, and Westerly by the County Road known as the North Parish Road.

'Being the same premises conveyed to Philip Bradford by deed of Hattie J. Maglathlin and others, dated September 12, 1884 and recorded in Androscoggin County Registry of Deeds, Book 114, Page 526 and 527.'

There is a further clause of said lease containing an exception, which clause is worded as follows:

'The parties of the first part hereby agree that the parties of the second part the said lessees, shall have the right to enter upon the within leased land and cut down and cart away all the lumber, both soft and hard wood, now standing on said land. Except that no lumber is to be cut off the ledge at the end of the lane leading from the house on said land. Also said lessees are to have all the logging privileges, together with the right of way needed for same, that go with said land.'

The controversy is this case is whether or not the defendants cut lumber in violation of the clause in the lease 'EXCEPT that no lumber is to be cut off the ledge at the end of the lane leading from the house on said land.'

The plaintiffs allege that the defendants cut and carted away 179 trees of the value of $895 from the ledge on said land. The burden was upon the plaintiffs to establish that the trees were cut from 'the ledge' to wit, the land described in the exception. There was no evidence in the case from which a jury would be warranted in finding that any trees were cut upon that portion of the premises described in the exception as 'the ledge at the end of the lane leading from the house on said land.'

As above stated, the burden of proof was upon the plaintiffs to show that the defendants cut trees from the excepted portion of the premises. By no process of legerdemain can they shift this burden to the defendants and force them to prove that the trees they did cut were not cut from...