Plumb v. Griffin

• Decision Date: 27 September 1901
• Citation: 74 Conn. 132,50 A. 1
• Court: Connecticut Supreme Court
• Parties: PLUMB v. GRIFFIN.

50 A. 1

74 Conn. 132

PLUMB

v. GRIFFIN.

Supreme Court of Errors of Connecticut.

Sept. 27, 1901.

Appeal from court of common pleas, Fairfield county; Howard J. Curtis, Judge.

Action by Henry E. Plumb against Robert H. Griffin. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought on section 1345 of the General Statutes of 1888, which provides that: "Every person who shall cut, destroy or carry away any trees, timber or underwood standing or lying on the land of another * * * without license of the owner * * * shall pay to the party injured two dollars for every tree of one foot diameter, and for all trees of a greater dimension three times their value, besides two dollars. 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 complaint was this: (1) On the 1st day of May, 1898, the plaintiff was, and ever since has been, the owner of a piece of land in the said town of Monroe, bounded, etc. (2) On said day the defendant, his servants and his agents, entered upon said land, and without license from the plaintiff cut 90 trees standing thereon. (3) Twenty-three of said trees were of greater dimension than one foot in diameter, and were reasonably worth $1 apiece, and 67 of said trees were under one foot in diameter. The plaintiff claims, by force of the statute in such cases provided, $192 damages. The defendant, in his first defense, admitted the first paragraph of the complaint, and denied the second and third. His second defense was that the right of action for the cause stated in the complaint did not accrue within one year next before the commencement of the action. The plaintiff, in reply, demurred to the second defense, because: (1) The cause of action set up in said complaint is not one to which the statute of limitations fixing one year as the limit for bringing an action applies; (2) the cause of action set up in said complaint is not one for a forfeiture upon any penal statute. The court sustained the demurrer, and upon the issue of fact found for the plaintiff to recover for 15 trees, each of a greater diameter than one foot, and the value of each to be $2, and rendered judgment for the plaintiff to recover the sum of 5120 damages and costs. The finding of facts shows that the defendant had a license from the plaintiff to go upon the piece of land described in the complaint to cut and remove certain chestnut trees; that the defendant sent his choppers onto said land with directions to cut the chestnut trees and all the other trees then growing, 10 inches or over in diameter. The defendant gave this order well knowing that he had no right to cut any other trees than the chestnut trees. The choppers did cut 15 other trees, which were subsequently removed. The defendant claimed that, since he had a license to enter upon the said land to cut and remove certain chestnut trees, the cutting and removing other trees at the same time was only a breach of the said license, and that no liability arose therefor under the said statute. The court overruled this claim. The defendant appealed. The reasons of appeal are: The sustaining of the said demurrer the finding of the value of the trees to be $2, when the complaint says they were worth $1.

V. Munger and Robert L. Munger, for appellant. John C. Chamberlain, for appellee.

ANDREWS, C. J. (after stating the facts). The demurrer was properly sustained. The Statute of limitations which the defendant invokes is section 1379 of the General Statutes of 1888, which provides that "no suit for any forfeiture upon any penal statute shall be brought but within one year next after the commission of the offense." The present suit is not barred by that section, unless section 1345, on which it is brought, is a penal statute,—one that declares a forfeiture, and one that deals with an offense. And it must be a forfeiture and an offense in the sense in which these terms are used in a penal statute. A brief examination shows that section 1345 is not a penal statute within the meaning of section 1379. Penal statutes, strictly and properly, are those imposing punishment for an offense against the state. And the expression "penal statutes" does not ordinarily include statutes which give a private action against a wrongdoer. Bouv. Law Dict. "The words 'penal' and 'penalty,' in their strict and primary sense, denote a punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws." Le Forest v. Tolman, 117 Mass. 109, 19 Am. Rep. 400; Reed v. Inhabitants of Northfield, 13 Pick. 94, 23 Am. Dec. 662; Mitchell v. Clapp, 12 Cush. 278; Read v. Inhabitants of Chelmsford, 16 Pick. 128; Goodridge v. Rogers, 22 Pick. 495; Woodgate v. Knntchbull, 2 Term R. 148; Stanley v. Wharton, 9 Price, 301; Wilkinson v. Colley, 5 Burrows, 2694; Lake v. Smith, 4 Bos. & P. 174; Quinby v. Carter, 20 Me. 218; Thacher v. Jones, 31 Me. 528; Frohock v. Pattee, 38 Me. 105. These cases decide, each of them (and there are many others), that a statute which gives no more than a right of action to the party injured to recover increased damages is not a penal statute.

The complaint in the present suit sets forth a case of trespass to land. It says that the defendant entered upon the land, of the plaintiff, and cut down and carried away certain of his trees,—giving their diameter, —and claims damages therefor pursuant to the statute....