Langdon v. Bruce

27 Vt. 657

Opinion

The opinion of the court was delivered by

Refield, Ch. J.

The only question in the present case is in regard to the defendant’s participation in the taking of the timber by Watts. This is mainly a question of fact and so far as any inferences of fact are deducible from the facts reported by the referees, they could only be made by the county court, to whom the report was made. And, on that account, we are bound to make reasonable intendments in favor of the judgment below.

The referees do not find that the defendant had any participation in the cutting of the timber, but find, generally, that he had not, unless certain facts stated constitute such participation. These facts are that defendant and Watts bought a lot adjoining plaintiff’s lot and divided it between them, by giving the timber to Watts and the land to defendant, both parties supposing, probably, that the timber cut was upon this lot, but it proved to be upon plain tiff’s lot. Defendant also let Watts have his hired man and charged the service to Watts, who used him upon this same cutting.

We think it could scarcely be claimed that the defendant letting his hired man to Watts, to assist in cutting the timber, could be regarded as any participation in the act of Watts in cutting the timber off from any other than the lot owned by him and defendant. Nor should we regard the division of the lot, in the manner stated, even with the belief that the timber in question was on the defendant and Watts’ lot, as any participation of defendant in the taking of this timber unless defendant did something or said something which was intended to induce Watts to cut this timber and which had that effect, or unless he was in some way benefited by the timber being cut. But nothing of this kind is found and no very striking facts tending towards such result. If it appeared affirmatively that the division was made upon the basis of this timber forming a portion of the joint property in any such manner as to leave defendant liable to make up the loss to Watts, the defendant must undoubt edly be held liable. But so far from this appearing, it would rather seem that he had no interest whatever in that question, but that Watts took the risk of where the lines of the lot were, as to the timber ; and the defendant, as to the land. And nothing appears in the case to show that the defendant took any part whatever in determining Watts where to cut timber more than by expressing an opinion in regal’d to the effect of the former decision in settling the boundaries of the dividing line of the two lots. And having no interest in the question, so far as the timber was concerned, we do not see why it should involve him in the act of Watts in cutting the timber, any more than it would, had he had no interest in the land.

Judgment affirmed.