Mhoon v. Greenfield

Citations

• 52 Miss. 434

Syllabus

<p>1. Trespass : Cutting trees. Statutory penalty. Code of 1857, v. 191, art. 1.</p> <p>The Code of 1857 (p. 191, art. 1) prescribes the penalty for cutting cypress trees on the land of another, without the consent of the owner, at $15 for each tree cut and carried away. This is an arbitrary value, without regard to its intrinsic worth or value in the market. An action for the penalty is of strict right, and must be established in evidence with reasonable certainty. It is in the nature of punishment as well as remuneration, and is merited, because it is a willful and deliberate trespass, and the trespasser cannot escape the penalty on the plea that he did not know that the plaintiff was owner of the lands from which he cut the trees. He must be reasonably diligent to ascertain.</p> <p>2. Same: Value of trees. Waiver of the tort. Suit for value of the property.</p> <p>Where trees.are cut in violation of the statute the owner may Waive the tort and sue in assumpsit for the value of the trees, as for quantum valebat, and if the defendant has converted the goods into money the plaintiff may recover the money for which the goods sold, treating the money as “had and received” for the plaintiff’s use; and this goes on the idea of a ratification of the sale and an election to take the price whether the full value of the goods or not. But to support this a sufficient time must have elapsed, with concurrence of circumstances, to justify the inference that the goods have been converted into money.</p>