Whitman v. Dailey

• Decision Date: 01 November 1921
• Docket Number: 334
• Citation: Whitman v. Dailey, 95 Vt. 454, 115 A. 559 (Vt. 1921)
• Parties: WILLIAM E. WHITMAN ET UX. v. LEON E. DAILEY AND C. E. LOWE
• Court: Vermont Supreme Court

115 A. 559

95 Vt. 454

WILLIAM E. WHITMAN ET UX. v. LEON E. DAILEY AND C. E. LOWE

No. 334

Supreme Court of Vermont

November 1, 1921

May Term, 1921.

ACTION OF TRESPASS to recover treble damages for cutting timber on plaintiffs' land. Plea, the general issue. Trial by jury at the September Term, 1920, Washington County, Wilson, J presiding. Verdict and judgment for the plaintiffs. The defendants excepted. The opinion states the case.

Judgment reversed, and judgment that defendant Dailey recover his costs. As to defendant Lowe the cause is remanded for a new trial.

Edward H. Deavitt and Fred L. Laird for the defendants.

H C. Shurtleff for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

MILES

This is an action of tort for the recovery of treble damages, under G. L. 6956. The case was tried by jury, and a verdict was rendered for the plaintiff to recover $ 175 actual damages, and also a special verdict, in substance that the defendants did not commit the trespass through mistake, nor had reason to believe that the trees cut were on the premises of the defendants. The defendants severally moved at the close of all the evidence for a directed verdict. The motions were overruled, and exceptions were allowed the defendants. The grounds of the motions were that there was no evidence tending to show that either defendant cut any timber on the disputed territory, or authorized any one to cut timber on said territory.

After the general and special verdicts were rendered, the defendant Lowe moved to have the verdicts set aside, but the motion was overruled and an exception was allowed. The grounds of the motion were: "(1) That said verdict is against the weight of the evidence; (2) that said verdict is not supported by the evidence in said case; (3) that the jury in rendering said verdict disregarded the evidence in said cause respecting this defendant; (4) that the jury in rendering said verdict disregarded the instructions of the court as affecting the liability of this defendant."

A careful examination of the evidence discloses that defendant Dailey did none of the cutting complained of, nor does the evidence disclose that he advised, commanded, countenanced, or approved of it after it was done. He had nothing to do with it. The court erred in overruling his motion for a directed verdict.

As to Lowe the case is different. In his case there was evidence fairly and reasonably tending to prove that he advised and directed cutting the timber claimed by the plaintiffs to be upon their land. The witness Lyon, who cut it, testified to that fact. Upon the grounds of this motion there was no error in the court's refusal to grant it. But his motion to set aside the verdict presents a different question.

As claimed by the plaintiffs, this motion was addressed to the sound discretion of the court, and its action upon that motion cannot be reviewed here unless that court failed to exercise its discretion or abused it. Lincoln v. Central Vermont Ry. Co., 82 Vt. 187, 72 A. 821, 137 Am. St. Rep. 998, and cases cited; French v. Wheldon, 91 Vt. 64, 99 A. 232. When all the evidence, as in this case, is before this Court on an exception to the action of the trial court in denying such a motion, based on the ground that the verdict is contrary to the instructions of the court, or wholly unsupported by the evidence, the rule as to the discretion of the court does not apply, and the question is reviewable. If it is clear from the record that the verdict is contrary to the instruction of the court, or that there is no evidence supporting it, the action of the trial court cannot be sustained. French v. Wheldon, supra.

Turning to the evidence, we find the controversy was over the original range line between the plaintiffs' and Dailey's land. The plaintiffs' land lay northerly of Dailey's land, and was separated from it by the original range line, and no question is made but that the original range line is the true division line between those lands. The plaintiffs claim that there is a "jog" in the range line between their land and Dailey's extending southerly three or four rods onto land claimed by Dailey. The situation can be better understood by referring to the following diagram: 95 vt 454. pcx head MAP.

The plaintiffs own the southerly part of lot 54, and the defendant Dailey owns the westerly half of lot 41, and the Ice Company owns the easterly half of lot 41 and twenty-five acres of the easterly part of lot 42. The line claimed by the plaintiffs as the true division line between their land and Dailey's is represented on the plan above by the dotted line, and the line claimed by the defendants is represented by the straight line separating lots 54 and 41.

It appeared that the line between 55, known as the Ducker lot and 40, known as the Senter lot, and the line between lot 53, known as the Ladd lot, and lot 42, known as the Daniels lot, were parts of the original range line in the second division of lots in the town of Middlesex, and that the line claimed by the defendants coincided at each end with those lines, as represented on the plan above. The plaintiffs claimed, as we have seen, that there was a "jog" in this range line between their land and Dailey's land, jutting onto land...