Black v. Mace

66 Me. 49, 1876 Me. LEXIS 119

• Court: Supreme Judicial Court of Maine
• Decided: December 21, 1876
• Status: Published

Opinion

Barrows, j.

The defendant complains of the order directing judgment to be entered up for treble the damages found by the jury, because he says the declaration sets forth no such claim, and does not refer to the statute by which treble damages are given, nor claim statute damages for the acts complained of. But the plaintiff did allege, substantially in the language of the statute, the doing by the defendant of the very acts for which B. S., c. 95, § 11, gives the injured party the right to recover in an action of trespass a sum equal to three times the value of the property taken ; and he alleges that these acts were done “against the form of the statute in. such case made and provided.” This was abundantly sufficient to inform the defendant of the nature and extent of the claim.

It was not essential to conclude the declaration with the words, “against the form” &c. Smith v. Montgomery, 52 Maine, 178.

The action and statute are remedial and not penal. Frohock v. Pattee, 38 Maine, 103. Mitchell v. Clapp, 12 Cush. 278.

Nor is the plaintiff required specifically to allege that he is entitled to treble damages for the acts complained of Clark v. Worthington, 12 Pick. 571. Worster v. Proprietors of Canal Bridge, 16 Pick. 541. The character of the acts charged sufficiently distinguishes the suit from one brought under § 9 of the same chapter.

Nor is it necessary under the statute to allege a scienter on the part of the defendant. He is bound at his peril to know that he has the consent of the owner before entering upon improved lands and taking property of this description.

The language of the statute is general and comprehensive, and no reference is made to any particular class, such as the court thought sufficient in Reed v. Davis et al., 8 Pick. 513, to relieve those differently situated from a liability to treble damages. If our legislature had designed to limit § 11 to cases of willful and malicious trespass, they would have said so. The jury having been directed to find single damages, the proper course was for the judge to order judgment for thrice the amount of the verdict. Lobdell v. New Bedford, 1 Mass. 153. Quimby v. Carter, 20 Maine, 218.

Exceptions overruled.

AppletoN, C. J., Walton, Diceerson and Virgin, JJ., concurred. Peters, J., being a relative of the plaintifF, did not sit.