shall be purchased by the owner of the horses, cattle, or other creatures so impounded, for the purpose of replevying them, it shall be in the power of the court or justice before whom the action shall be brought, to give judgment in favour of the proprietor of the general field, upon his producing satisfactory evidence to the said court or justice, that the horses, cattle, or other creatures replevied as aforesaid, were either clandestinely turned into the general field, or broke into the same in a part thereof, where the fence was good and sufficient according to law, some other parts of the fence inclosing the general field being deficient notwithstanding. IV. Of trespass to pine trees. By statute it is enacted, that from and after the publication of the act, no person may presume to cut or carry off any tree, trees or timber, bark or box any pine-tree or trees, for the drawing of turpentine, standing upon any of the lands belonging to this province, proprietors, townships, or particular persons, without leave or license first had and obtained from the owner or owners thereof; on pain of forfeiting and paying the sum of twenty shillings, for every tree so cut or removed, barked or boxed. And the turpentine drawn from them, when found either in the trees aforesaid, barrels or other vessels lying upon the said lands, to be alike forfeited; one moiety thereof to the respective owners of the said land and trees, the other moiety to be to him or them that shall inform or sue for the same, before any justice of the peace in the county where the offence is committed, if the forfeiture exceeds not forty shillings; but if above that value, in any court of record, within this province. Stat. 1715,3 Vol. Stat. By a subsequent statute it is provided, that if any per- Stat. 1783, c. 22. son, after the publication of the act, shall cut, fell or destroy any white-pine tree, which is, or shall be at the time of felling or destroying the same, of the diameter of twenty-four inches, or upwards of twelve inches from the Stat. 1785, c. 28, s. 1. Malicious trespasses to private property. ground, growing or standing on any tract of land within any part of this commonwealth, not the property of any private person or persons, without license first had and obtained for so doing, from this legislature, or be aiding and assisting therein, or in drawing away the same after so cut and felled, he shall forfeit the sum of thirty pounds, to be recovered by bill, indictment or information, in any court of record in this commonwealth proper to try the same, two thirds thereof to the use of this commonwealth, and one third thereof to the informer; and the sum of three pounds for any other white-pine tree on the land aforesaid, to be recovered as aforesaid, and to the uses before mentioned; provided such prosecution be commenced within two years from the time when the offence shall be committed. V. Of malicious trespasses; and herein of such trespasses committed in the night time. If any person shall cut down, destroy or carry away any tree or trees whatever, placed or growing for use, shade or ornament; or any timber, wood or underwood, standing, lying or growing on land not his own, not having the consent of the owner thereof; or shall throw down or open any bars or gates, fence or fences, and leave the same down or open; or shall injure, mar or deface any fence or fences, belonging to, or inclosing lands not his own; or shall dig up, or carry away any stones, ore, gravel, clay, sand, turf or mould, roots, fruit or plants; or cut down or carry away any sedge, grass, hay or corn, wherein he hath no interest, standing, lying, or being on any land not his own; or shall take or carry away from any wharf or landing place, whereof he is not a proprietor or owner, any goods whatever, wherein he hath no interest, without the leave of some person who hath interest therein; or shall break the glass, or any part of it, in any building not his own; the person so offending shall forfeit and pay for each tree or stick of timber so cut down, destroyed or carried away, and for each and every other offence, a fine not less than five, nor more than forty shillings, to the use of the commonwealth, to be recovered on complaint before any justice of the peace in the county where the offence shall be committed, and shall be liable to answer in damages to the party injured. Ibid. s. 2. Trespasses to any If any person shall wilfully break, deface or destroy any milestone or public monument, unless properly authorized so to do, the person so offending shall forfeit and public monument. pay for each offence, a fine not less than forty shillings, nor more than fifteen pounds, to the use aforesaid, to be recovered on indictment before the court of general sessions of the peace in the county where the offence shall be committed, and be further liable to answer in damages as aforesaid. Ibid. s. 3. Secretly, in the night Any person who shall commit any of the offences above mentioned, secretly, in the night time, or in disguise, shall forfeit and pay a fine to the use of the com- time. monwealth, not less than three pounds, nor more than twenty pounds, for each offence, to be recovered on indictment in manner above provided, and be liable to answer damages as aforesaid. 1 Ibid. Proceedings when the to pay his fine. Ibid. s. 4. And if any person, on being indicted and sentenced to pay any of the fines aforesaid, shall be unable to pay the same, the court passing sentence, may order such person delinquent is unable to be publicly whipped, not exceeding twenty stripes, or be imprisoned not exceeding ninety days, and to find sureties for his good behaviour for the term of one year. When any trespasses shall be committed on any buildings or inclosures belonging to any county, town or parish, the county, town or parish treasurer, for the time Trespasses to public buildings, etc. being, may sue for the damages done to the public buildings or inclosures of their county, town or parish, respectively; and where any public buildings are owned partly by the town and partly by the county, in that case, the county or town treasurer, whoever may first institute an action, may prosecute for damages thus sustained. Stat. 1785, c. 62, s. 1. Ibid. Ibid. s. 2. VI. Of trespasses, by joint tenants, tenants in common, and coparceners. By statute it is enacted, that if any person holding any lands in common and undivided, shall cut down, destroy, or carry away any trees, timber, wood or underwood whatsoever, standing or lying on such lands, or shall dig up or carry off any stone or ore, or any other valuable matter, or make any other strip or waste thereon, without first giving notice, in writing, under his or their hands, unto all the persons interested therein, or to their agents, factors or attorneys, forty days beforehand, setting forth that he or they have occasion for, and shall enter upon and improve such lot or lots of land lying in common as aforesaid, he shall forfeit and pay the sum of forty shillings for every tree measuring one foot diameter, at the distance of two feet from the ground, and for all trees of greater dimensions three times the value thereof, besides forty shillings as aforesaid, and twenty shillings for every tree or pole under the dimensions of one foot diameter, and for other wood or underwood so cut down, destroyed or carried away, treble the value thereof, and treble damages for any other strip or waste. The said forfeitures may be recovered by any one or more of the persons interested in the same lands, who may prosecute and sue for the same in an action of trespass, in his or their own names, as well on the behalf of the other co-tenants, except the defendant, without being held to name them in the writ, as of him or themselves, one moiety of the aforesaid penalties to be for the use of such person or persons who shall sue for the same, and the other to and for the use of all the co-tenants, excepting the defendant, in proportion to their respective interests in the land, where the trespass has been committed. When any writ of partition shall be brought and served at the suit of any one or more persons so interested in any lot or lots of land, tenements or hereditaments, or a petition shall be pending in court for a partition of the same, no person or persons whatsoever, having a right or interest in such lands, tenements or hereditaments, or holding any part or share of the same in common as aforesaid, while such suit or petition is depending, shall or may cut down, destroy or carry away any trees, timber, wood or underwood, stone or ore, or other valuable matter whatsoever, standing, growing or lying on, or belonging to such lands, or shall otherwise hurt or damage any such lands, tenements or hereditaments, until partition can be made of the same according to law, on pain that every person or persons so offending, shall incur the like forfeitures and penalties, as are before in this act mentioned and declared. VII. By whom this action of trespass may be maintained. 2 Esp. Dig. cites To maintain an action of trespass, an interest in the soil is not necessary; an interest in the profits is suffi- Co. Litt. 4. 6. cient. So if JS agrees with the owner of the soil to plough and sow it, and give him half the profits, J S may have this action quare clausum fregit for treading down the corn, and the owner is not jointly concerned in the growing corn, but is to have half after it is reaped by way of rent, which may be of other things than money; though in Co. Litt. 142, it is said, it cannot be of the profits themselves, but that (it seems) must be understood of the natural profits. Bull. N. P. 85. Per Cur. in Clap v. 4 Mass. Rep. 268. Where a man has a separate interest in the soil for a particular use, although the right of the soil is not in him, Draper, if he be injured in the enjoyment of his particular use of the soil, he may maintain trespass quare clausum fregit; but not if his interest is in common with others. Thus this action lies for him who has the herbage, although not a right to the soil. Ibid. |