Whitney v. Backus

• Decision Date: 25 April 1892
• Docket Number: 362
• Parties: Whitney et al. v. Backus, Appellant
• Court: Pennsylvania Supreme Court

24 A. 51

149 Pa. 29

Whitney et al. v. Backus, Appellant

No. 362

Supreme Court of Pennsylvania

April 25, 1892

Argued April 28, 1891

Appeal, No. 362, Jan. T., 1891, by Andrew Backus, one of the defendants, from judgment of C.P. Erie Co., Nov. T., 1885 No. 116, on verdict for plaintiffs, George M. Whitney et al.

Trespass quare clausum fregit to recover treble damages for cutting timber, under the act of March 29, 1824.

The summons was issued against the defendants "doing business as the Penn Lumber Company, Limited," and served personally on each of them. All the defendants pleaded not guilty and liberum tenementum. The Penn Lumber Company Limited, was organized under the act of June 2, 1874, and its supplements. At the trial the court by GUNNISON, P.J., refused plaintiff's request to charge that defendants were liable as general partners for torts committed by the firm in the prosecution of the firm business. The material facts appear by the opinion of the Supreme Court.

Plaintiffs' sixth point, affirmed, was as follows:

"6. That it is not necessary to prove by direct evidence that the defendants were seen in the act of cutting the timber, but if the jury find from all the circumstances that they authorized or ratified the trespasses complained of, then that would make them legally liable to the same extent as if they had individually committed the alleged trespasses." [1]

Defendant's third and fifth points, refused, and defendant's sixth point with the answer thereto were as follows:

"3. That if they find that L. Leavitt, on or about the year 1837, purchased the property known as the Leavitt Lot, including the land in question, and settled thereon, receiving a deed therefor from A. J. Culbertson in 1839, and continued to reside thereon for six or seven years, cleared land, planted fruit trees and made other improvements, exercising ownership over the identical land in question, that such purchase and occupation, followed by a series of conveyances to the present owners, constitutes a good title as against the plaintiffs having merely a paper title to wild land without possession, and the plaintiffs cannot recover." [2]

"5. That under all the evidence in this case the plaintiffs cannot recover and their verdict must be for the defendants." [3]

"6. The evidence in this case clearly showing that Lorett Leavitt came upon the land known as the Leavitt Lot in 1837, receiving a deed therefor in 1839, including the land in question; that he made valuable improvements and lived upon the land six or seven years, that the part of this land in Erie county was assessed to said Leavitt from 1839 to 1854, when it was sold as his property for taxes; that by a series of assignments on the Leavitt deed the same land was transferred to J. W. Clark in 1851; that it was assessed to said Clark from 1853 to 1858, when it was again sold for taxes as the property of said Clark; that both the said tax titles, also a quitclaim deed from said Leavitt, having come down by a series of regular conveyances to the defendants in this case, also a patent from the commonwealth taken in connection with the fact of the defendant's deed and survey from Scott and Tracy and their occupation of the land, as shown by the evidence, constitutes in law a possession, with color of title, and the action of trespass will not lie."

Answer:

"The facts recited with the article to the Penn Lumber Company, Limited, are evidence of possession by the Penn Lumber Company, Limited, under color of title, which, if found by the jury, is a complete defence to this action." [4]

The court charged, inter alia, as follows:

"Right here it is proper to instruct you that, so far as the evidence shows, none of these defendants actually participated in the cutting down of any of the timber, and there is no evidence that any of the defendants, except Mr. Backus, authorized the cutting of it down; so that so far as any of the defendants, excepting Mr. Backus, are concerned, your verdict must be for them. That is, you cannot find a verdict against any of them but Mr. Backus.

"Now, the evidence against Mr. Backus is not direct evidence. There is no direct and positive evidence that he authorized it. There is some evidence, however, which it is proper to submit to you, from which you might infer, perhaps, that he authorized it. It is very slight evidence, of course, but still it is some evidence, and is sufficient to submit to you. It appears that in 1883 he was the superintendent of the Penn Lumber Company, and that, from that time on until June, 1885, when Mr. Pierce took the position, and during which time this timber was cut, if the evidence is to be believed, that he was generally on the property and acted as superintendent. Now, the evidence shows that the Penn Lumber Company directed this to be cut; did they do it through Mr. Backus? Was he the man who authorized it? That is another question for you to determine, and you must determine that in the affirmative before you can find a verdict against him. He was there part of the time, he says; but he does not say, nor does any other witness say, that he was there at the time the timber was cut. But he being the superintendent, and the timber being cut by order of the Penn Lumber Company, he being there a portion of the time, it is for you to say whether he authorized it to be done or not." [5]

Errors assigned, were (1) affirming plaintiffs' sixth point; (2, 3) refusing defendants' third and fifth points; (4) not affirming their sixth point; (5) the portion of the charge as above, quoting the points, answers and charge.

Judgment reversed.

Joseph M. Force, with him Henry C. Yard, for appellant.

E. A. Walling, with him John P. Vincent, for appellees.

Before PAXSON, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

MR. JUSTICE McCOLLUM:

This was an action of trespass quare clausum fregit brought by George M. Whitney and Lucinda M. Whitney against Alfred Short, William C. Culbertson, Roscoe A. Davidson, Andrew M. Backus, and Edwin J. Dodge, doing business as the Penn Lumber Co., Limited, to recover the damages allowed by § 3 of the act of March 29, 1824, Pur. Dig. 1635, for cutting timber trees without the consent of the owner. It resulted on the trial in the court below in a verdict and judgment of $100 against Andrew M. Backus, who is the appellant here.

The instruction complained of in the first specification of error is in accord with well settled principles applicable to cases of this kind. McCloskey v. Powell, 123 Pa. 62, and 138 Pa. 383, is the latest case on...