Dreyer v. Ming

23 Mo. 434

• Court: Supreme Court of Missouri
• Decided: October 15, 1856
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

There is no doubt that it is a general rule that all persons who order or procure a trespass to be committed, and indemnify others for doing it, or incite them to do it, may be sued as principals. The defendant, Ming, had no right to the timber, and he could confer no right to it on another. By the act of conveying the timber of the plaintiffs, the defendant asserted a right of control over it, and in receiving the money for the ties after they had been cut, he adopted the trespass as an act done for his own benefit. The principle has been frequently recognized, that any unlawful interference with, or assertion of control over, the property of another, is sufficient to subject a party to an action. (Phillips v. Hall, 8 Wend. 613.) The defendant, by undertaking to dispose of plaintiff’s property, was the moving cause of the injury sustained by the plaintiffs. This case is similar to that of Wall & Wall v. Osborne, (12 Wend. 39,) where a party sold a mill sta icling on the lot of his neighbor, and appointed a day for the purchaser to take it away, promising to aid him in its removal, if it was necessary, and the mill was subsequently t'ken down and removed by the purchaser ; and it was held ¡hat the vendor was liable to an action of trespass, although there was no proof of his being present or aiding in the removal of the building. The court said : “ To render one man liable in trespass for the acts of others, it must appear either that they acted in concert, or that the act of the individual sought to be charged ordinarily and naturally produced the acts of the others.” In Scott v. Shepard, (2 Black. 892,) De Grey, C. J., laid it down as a correct principle, that one who does an unlawful act is considered as the doer of all that follows. In the language of Lord Ellenbo-rough, in Leame v. Bray, (3 East, 595,) he is the causa causans, the prime mover of the damage to the plaintiff’. In the case of Morgan v. Varick, (8 Wend. 587,) it was held that a disseizee, after recovering possession, may maintain trespass against the disseizor, or his servants, or a stranger acquiring title from the disseizor.

The plaintiff having a patent P-- r the land on which the timber grew, the cases of Green v. Liter, (8 Cranch, -;) Cook et al. v. Foster, (2 Gilman, 656,) and Gale v. Davis, (7 Mo. 544,) show th4t, although not in the actual possession and occupation of it, they were entitled to maintain trespass against wrongdoers.

As the case turns wholly on the point whether the sale of the timber by the defendant to Crews made him a trespasser, and as the court so instructed the jury, and they found accordingly, there was no error in refusing the second instruction asked by the defendant, 'i he law relative to th ■ matter of the first instruction had been previously given to the jury.

It is well settled law that the owner of property may, after he has conveyed it away, maintain trespass for injuries done prior to the alienation. (Viner, tit. Trespass, 475.) The other judges concurring, the judgment will be affirmed.