Petroman v. Anderson

• Decision Date: 16 December 1926
• Citation: Petroman v. Anderson, 105 Conn. 366, 135 A. 391 (Conn. 1926)
• Parties: PETROMAN ET AL. v. ANDERSON.
• Court: Connecticut Supreme Court

135 A. 391

105 Conn. 366

PETROMAN ET AL. v. ANDERSON.

Supreme Court of Errors of Connecticut.

December 16, 1926

Appeal from Court of Common Pleas, New London County; Charles B Waller, Judge.

Action by Onni M. Petroman and others against Otto Anderson, Sr. for the alleged unlawful cutting of timber, brought to court of common pleas in New London county and tried to a jury. From a judgment for plaintiff, defendant appeals. No error.

Telley E. Babcock, of Norwich, for appellant.

Charles V. James and Arthur M. Brown, both of Norwich, for appellees.

HAINES, J.

This action was brought under the provisions of the General Statutes, § 6140, the essential portions of which are as follows:

" Every person who shall cut, destroy or carry away any trees, timber or underwood, standing or lying on the land of another, or on town commons, or on any common and undivided land, without license of the owner, and all who shall aid therein, shall pay to the party injured one dollar for every tree or pole under one foot diameter; and for all trees of a diameter of one foot or more three times their value; but when the court shall be satisfied that the defendant was guilty through mistake, and believed that the timber was growing on his own land, it shall render judgment for no more than its true value. * * *"

The land in question lies in the town of Griswold, and the dispute involves the division line between the plaintiff's farm and the farm of the son of the defendant. The defendant offered evidence, which is undisputed, that he had the permission of his son to cut the trees in question, and Otto Anderson, Jr., and the defendant both claimed that the son owned the land from which the trees were cut. The defendant claimed that, if the land was found to be the property of the plaintiff, then the trees were cut by him under an honest mistake within the meaning of the statute, so that only the " true value" of the trees, should be assessed against him. The burden was upon the defendant to prove the mistake. The jury found against the defendant upon both of these questions, assessed damages for $264, and rendered its verdict accordingly, and the court entered judgment thereon and for costs. A motion to set aside the verdict was denied, and this action is the subject of three of the reasons of appeal: First, that the verdict " was against the evidence, the weight of the evidence, and the law, and because the verdict was excessive" ; second, because there was no evidence of willful cutting, and the defendant should be held in any event for no more than the true value of the trees; and, third, because the amount of the verdict exceeded the value of the trees as stated in the evidence. The remaining reasons of appeal are based upon the refusal of the court to find the facts as the defendant requested in various particulars, claimed errors in the admission of a certain deed, an old map of the plaintiffs' farm, and a rough sketch of the same, as well as the refusal to strike out certain evidence, and lastly, by claimed error in a portion of the charge.

As to the correctness of the finding: The action of the court in refusing to strike out paragraphs 8, 9, 11, 12, 13, and 14, of the finding, on the ground that there is no evidence to support them, was correct. A careful examination of the transcript shows that for the most part there is direct evidence in support of the facts claimed by the plaintiffs, and as to those not so supported, being influences of fact which the jury might reasonably have drawn from the evidence.

The refusal to add to the finding paragraphs 25, 31, 32, 39, 40, 41, 42, and 43 of the draft finding was erroneous. It appears from the transcript that there was some evidence offered by the defendant in support of these claims, and they should be allowed. Paragraphs 35, 36, and 37 were properly refused. It should be borne in mind that this is a jury finding, which is merely a statement of what the parties " offered evidence to prove" and cannot, like a court finding, contain the conclusions of the court.

The paragraphs referred to in C are recitals by the court of the situation existing when the evidence objected to was offered. They are not findings of fact in the strict sense of the word. The evidence, however, seems to furnish reasonable support for them. The refusal to strike out was not erroneous.

While there appears to have been some confusion in the testimony of the witness Pierce, referred to in D, the last statement was that both his father and Eggleston showed him the bounds. The retention of this paragraph was not erroneous.

The statements by the court of the ground upon which the deed and map were admitted are unexceptionable as such. The deed is dated 1854, and the map recites the measurements by surveyor as of 1827, and both were found in the proper custody. They were ancient documents--more than 30 years old--and as such prove themselves; i.e. that they are what they purport to be. It also appears the plaintiff had the information which an examination of the map disclosed at the time of his purchase. Such ancient documents are properly admitted to prove ancient possession. McMahon v. Stratford, 83 Conn. 386, 76 A. 983; Hamilton v. Smith, 74 Conn. 374, 50 A. 884; Beach v. Whittlesey, 73 Conn. 530, 48 A. 350; New Haven v. New York, N.H. & H. R. Co., 72 Conn. 225, 44 A. 31; Merwin v. Morris, 71 Conn. 555, 42 A. 855.

The only evidence to which exception was taken by the defendant as disclosed by...