State v. Smith

• Decision Date: 25 May 1886
• Citation: 78 Me. 260,4 A. 412
• Parties: STATE v. SMITH and others.
• Court: Maine Supreme Court

4 A. 412

78 Me. 260

STATE

v. SMITH and others.¹

Supreme Judicial Court of Maine.

May 25, 1886.

Action of trespass. On report.

Charles Hamlin and Jasper Hutchings, for the State.

A. W. Paine, for defendants.

FOSTER, J. The defendants were authorized by the land agent to guard certain lots reserved for public uses in Silver Ridge Plantation against trespassers. They had no right or authority to permit or sell timber or other property from these public lots. As assessors of that plantation in 1879, supposing they had such right, after exploring the lots, they permitted all the hemlock bark on one of said lots to one St. John for $100. The permittee assigned his contract to Shaw Bros., who, during that and three following years, cut down the hemlock, and carried away the bark, leaving the trees. Two weeks after the first permit the defendants, by another writing signed by them, permitted all the growth on these public lots, subject to the contract assigned to the Shaws, to Jesse S. Smith, one of their own number, for $500, but which was never paid. Smith thereafter assigned his contract to one Johnson, who cut and carried away, during the years named, spruce and cedar timber, and removed the hemlock trees left by the Shaws. In all the lumbering operations upon the lots Smith acted as scaler.

For the trespasses committed by the Shaws and Johnson, the plaintiff claims to hold the defendants personally liable; and the real question at issue is whether they are liable or not. We are satisfied that they are liable. This action is for trespass to the real estate, with a count de bonis for the timber and bark carried away, under Rev. St. c. 5, § 10, which permits suits in favor of the state to be brought in any county. It is undisputed that the title to the lots in question is in the plaintiff, as well as the possession thereof through the land agent, who, by virtue of section 15 of the same chapter, "shall have the care of the reserved lands in all townships or tracts until they are incorporated, and the fee becomes vested in the town."

The defendants not only entered upon and explored the land, but they authorized the cutting and removal of the timber and bark. Whatever may have been their intention is immaterial in this suit. If what they did in authorizing others to enter upon and remove the timber and bark from the lots naturally and ordinarily produced the acts complained of, which constitute the alleged trespasses, then they are liable in trespass for those acts. Sutton v. Clarke, 6 Taunt. 29; 1 Wat. Tresp. § 62. The principle upon which one man is held liable for the acts of others is thus laid down in Guille v. Swan, 19 Johns. 382, where the court say:

"To render one man liable in trespass for the acts of others, it must appear either that they acted in concert, or that the act of the individual sought to be charged ordinarily and naturally produced the acts of the others."

In Wall v. Osborn, 12 Wend. 39, the same principle is recognized, and the doctrine affirmed that one who does an unlawful act is considered as the doer of all that follows, and the prime mover of the damages that result; and accordingly it was there held that where a party sold a mill standing upon the lot of his neighbor, and appointed a day for the purchaser to take it away, promising to aid him in its removal if assistance was necessary, and the mill was subsequently taken down and removed by the purchaser, that the vendor was liable to an action of trespass, although there was no proof of his being present or aiding in the removal of the building. "By the act of selling the plaintiff's property," remarks Savage, C. J., "the defendant assumed a control over it, and by appointing the time for the removal of the mill he virtually directed the purchaser to take it away." So in Morgan v. Varick, 8 Wend. 594, the defendant sold the plaintiff's steam-engine, and requested the purchaser to take it away, and he was held liable in trespass, the court there holding that any unwarrantable and unauthorized interference with the property of another will constitute the party a trespasser. And it has been held that if one sell timber upon the land of another, and the purchaser cut and remove it, the seller is a trespasser. Dreyer v. Ming, 23 Mo. 434.

The party is held liable in such cases on the principle that he who does an act by another does it himself. It may not be the work of his hands, yet it is the result of his will and his purposes, which are the efficient cause of the operations conducted by others. The case of Scott v. Shepard, 2 Wm. Bl. 892, where the defendant started the lighted squib, and it was thrown into a market-house, where a large concourse of people had assembled, is a strong instance of the responsibility of an individual who was the first, though not the immediate, agency in producing an injury. Another instance is the case of Guttle v. Swan, supra, where the defendant ascended in a balloon, which descended a short distance from the place of ascent into the plaintiff's garden; and, the defendant calling for help, a crowd of people broke through the fences into the plaintiff's garden, beating and treading down his vegetables and flowers. It was held, inasmuch as the act of the defendant would ordinarily and naturally draw the crowd into the garden, he was answerable in trespass for all the damage done to the garden.

In the case now before us the defendants, without right or authority, assumed dominion and control over property belonging to the plaintiff. They authorized the cutting and removal of the timber and bark from the public lots, which they have no right to do. The fact that they supposed they had such right renders them none the less trespassers. As was said by Spencer, C. J., in Guille v. Swan, supra: "The intent with which an act is done, is by no means the test of the liability of the party to an action of trespass." To be sure, the permits were...