Moody v. Whitney , 34 Me. 563 ( 1852 )

Rice, J.

This is an action of trover for the joint conversion, by the defendants, of certain timber trees, the alleged property of the plaintiff.

The title to the land from which the trees were taken was in dispute, and claimed both by the plaintiff and by Whitney and Kimball, two of the defendants. The title deeds of the parties were introduced and also a plan of the premises made by a surveyor appointed by order of the Court. Upon that plan was delineated the lines as claimed by the different parties.

Instructions were given by the Court with reference to those conflicting claims.

With respect to the trees cut and carried away, there was testimony tending to prove that they were cut and carried away by two of the defendants, Whitney and Kimball, from the land of the plaintiff upon his construction of the deeds, and that the other defendant purchased a part of them with others, and caused them to be sawed and converted to his own use at the mill.

Upon this point the jury were instructed, that if satisfied that the trees were thus cut, carried away, sawed and converted, the action could be maintained for their value, where they first became personal property, at the time of their first conversion after they were cut and fallen.

The trees became personal property as soon as they were severed from the soil, and the wrongful assumption of dominion over them after they were thus cut and fallen, would be a conversion on the part of Whitney and Kimball. A tortious taking is conversion. Salisbury v. Gourgas, 10 Met. 442.

Farnsworth, the other defendant, subsequently purchased part of the trees. He does not appear to have been in any way connected with the original cutting and carrying away, or even to have known from whence the trees came. His liability could not, under such circumstances, be extended beyond the value of the trees purchased and converted by himself, in case he is held liable with the other defendants for a joint conversion. There may have been very many trees taken from the land by Whitney and Kimball, and those trees may have been of great value, and for which they may be liable. Of those taken by them the case finds that Farnsworth purchased a part only, it may have been a small part, both in quantity and value.

The instructions given would have authorized, if not required, the jury to hold Farnsworth liable for the value of all the trees cut and carried away by Whitney and Kimball, whether they ever came into his possession or not. Indeed, such would seem to have been their necessary effect.

This will entitle the parties to a new trial. There were several other points taken by the defendants, upon which the Court do not deem it important at this time to express an opinion. The verdict is to be set aside

and a new trial granted.

Tenney, Howard and Appleton, J. J., concurred.