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outstanding title adverse to plaintiff, or plead any license or warrant to enter upon the ground in controversy. We do not find any thing in the record to support the plea of forfeiture.

The appellant contends that in this case, if it were liable for actual damages, the court below erred in rendering judgment for treble damages. This suit was instituted for damages for willful and malicious trespass; but respondents contend that, notwithstanding the complaint charges willful and malicious trespass, they are nevertheless entitled to treble damages, under section 363 of the Code of Civil Procedure. The respondents contend that it was not necessary, under said section, to allege or prove malice, wantonness, or evil design, etc.

In Endlich on the Interpretation of Statutes, section 129, the author, commenting on similar statutes, says: “Similarly, statutes giving punitive, double, or treble damages against one cutting and converting to his own use timber growing on the land of another, without the latter's consent, are held confined to cases where some element of willfulness, wantonness, carelessness, or evil design enters into the act."

In Cohn v. Neeves, 40 Wis. 393, the court, in a case involving the construction of a statute similar to the one under consideration here, says: “ The important question arising upon the various exceptions taken by defendants is: Does the statute give the treble damages when the conversion is merely a technical conversion in law, as in the case before u8, or was it only intended to apply to cases where some ingredient of willfulness, wantonness, or evil design enters into the act? According to the view of the circuit judge the statute applies to every case of the conversion of logs, timber, or lumber floating in any of the waters of this state, or lying on the banks or shores of such waters, or on any island where the same may have drifted, and gives treble damages as the measure of recovery. It seems to us that this is an unreasonable and unsound construction of the provision. True, the language used is general, and, if literally interpreted, would include any conversion. But, says an acknowledged authority on this subject, in interpreting a statute it is not always a safe rule, or a true line of construction, to decide according to the strict letter of the act, but courts will rather consider what is its fair meaning, and will expound it differently from the latter, in order to preserve the intent. Qui hæret in litera, hæret in cortice: Brooni's Legal Maxims, 536. Observing this rule of interpretation, looking at the object and purpose of the statute, we cannot think it was intended to apply to every conversion of this kind of property, situated or found as described, without regard to the question whether the conversion was wanton and willful or not. It is needless to observe that the law is highly penal in its character. By way of punishment it subjects the wrongdoer, in certain cases, to an extraordinary liability for the property of another appropriated to his use. In some cases the conversion may be merely a technical one in law, arising from accident, mistake, or even carelessness, without any evil design, and where the damages recoverable at common law afford an ad ate compensation to the party injured." The same conclusion is arrived at, and the same construction placed upon a similar statute, in Wallace v. Finch, 24 Mich. 256.

In Kramer v. Goodlander, 98 Pa. St. 353, construing a stato ute almost identical with ours, the court say: "Its (the " statute's] object is the prevention of willful or careless cutting of another's timber, by at once punishing the wrongdoer, and amply compensating the owner."

In the case at bar the evidence shows that the land in controversy was located out in the wilderness, far away from human habitation. The plaintiffs had to cut a trail through the timber to get to it. The defendant, coming to the land from another direction, had to cut a trail also. The defend. ant found but little evidence that any of the land in the vicinity had ever been claimed by any person for any pur. pose, except the blazing of four or five trees, and a small discovery shaft on the ground in controversy, as the work of plaintiffs. There was nothing to indicate that anybody actually asserted ownership or dominion over any part of the country thereabout. The circumstances attending the tres. pass complained of here are vastly different from a case where a person cuts down a shade tree in front of another's house or lot, or enters another's close and damages trees or timber therein, when all the evidences of ownership in another are present. These are the acts and trespasses we think are intended to be denounced and punished by our statute. The evidence in the case does not support the contention that there was any willfulness, wantonness, or maliciousness in the acts or conduct of the defendant. We therefore think that the evidence did not justify the rendering of judgment for treble damages against defendant in this

case.

It is ordered that the judgment of the court below be mod. ified, by rendering judgment in favor of plaintiffs against the defendant, for the amount of actual damages found by the jury, and in other respects the judgment is affirmed as mod. ified.

HARWOOD, J., concurs.

TRESPA89.-DAMAGES FOR CUTTING AND CARRYING AWAY TIMBER: Seo the extended notes to Blaen Avon Coal Co. v. McCulloh, 43 Am. Rep. 563, and Coal Creek Min. etc. Co. v. Moses, 54 Am. Rep. 422..

MINING LOCATION - LABOR.—When a mining rule makes work upon ono set of claims work upon contiguous claims by the same owner the amount required to hold one set will hold all: Bradley v. Lee, 38 Cal. 366.

WHITTAKER V. HELENA.

(14 MONTANA, 124.) NEGLIGENCE—CONTRIBUTORY OF ONE PERSON, WHEN IMPUTED TO ANOTHER.

A person who voluntarily takes passage in a vehicle, driven and man. aged by another, assumes tho risk of the care and skill of the latter, and if an injury results to which the negligence of the latter contribated, cannot recover therefor. Sydney H. McIntire, for the appellant. F. Adkinson and John.S. Miller, for the respondent.

197 PEMBERTON, C. J. This is an action to recover damages for personal injuries sustained by plaintiff by being thrown from a buggy in the streets of said defendant city. Among other things, the complaint alleges, substantially, that on the thirtieth day of August, 1890, and for some days prior thereto, the defendant wrongfully and negligently authorized and permitted a certain show to be maintained and conducted in a tent, or canvas-covered wagon, on Grand btreet, in said city; that said show was such an obstruction as to render travel along said street unsafe and dangerous, and was of such character as to frighten gentle and wellbroken horses driven along said street; that on said thirtieth day of August plaintiff was riding in a buggy drawn by a safe and gentle horse, which was being driven with due care and caution along said street, when said horse, without any fault or negligence of plaintiff, became frightened at said

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show tent or wagon, became unmanageable, and ran away, upsetting said buggy and throwing plaintiff to the ground with great force, whereby he was greatly injured and damaged; that plaintiff, in the lawful transaction of his business had necessarily to pass along said street. The allegations of the complaint are denied by the answer. The case was tried in the court below with a jury, and resulted in a verdict for the plaintiff for one thousand dollars, for which sum judge ment was rendered. Defendant moved for new trial, which was denied. This appeal is prosecuted from the judgment and order denying the motion for new trial.

The evidence clearly shows that the plaintiff, at the time of the accident set forth in his complaint, was riding with one James S. Dunn, who owned the buggy and horse, and was driving the same. Dunn, it seems, was on his way to lunch, and invited plaintiff, who lived in the same part of the city, to ride with him, as it seems he did almost every day prior thereto. The evidence does not show that plaintiff knew of the existence of the alleged obstruction to travel on the street, but Dunn swears that he knew of it. Dunn was, at the time, an alderman of the city. It appears from that evidence the accident to plaintiff occurred at about 1 o'clock P. M. on the thirtieth day of August. At 12 m. of said day there was a meeting of the city council of said city. Dunn swears that he was at that meeting, and in an earnest and excited manner called the attention of the council to the fact that this show in the tent or wagon was located and doing business on Grand street, and also called the attention of the council to its dangerous character; that the mayor stated that he would see to its removal at once; that thereupon the council adjourned, and that he went immediately to Edwards street, got his horse and buggy, drove to Main street, took the plaintiff into his buggy, as he was in the habit of doing every day, and started up Grand street, and, in attempting to pass this tent or wagon, the accident happened which resulted in plaintiff's being injured and damaged; that the tent or wagon was on one side of the street, and a pile of rock the city was using in work on the street was on the opposite side of Grand street from the tent or wagon; that, in attempting to pass between the tent or wagon and said pile of rock, the horse became frightened, and ran the buggy over the rock pile, turning the buggy over, throwing the occupants out, and inflicting upon the plaintiff the injuries for which he sues in this action. This evidence of Dunn is in no way questioned. That he knew the obstructed and dangerous condition of Grand street (if it was in a dangerous and obstructed condition) when he drove upon it is beyond dispute. Under this state of facts could Dunn recover if he were prosecuting this suit against the city? If he could not recover, can this plaintiff, who was voluntarily riding with him in his buggy, recover? Was Dunn guilty of such contributory negligence as would defeat his right to recovery, when he drove upon the street, knowing the condition thereof? If so, was his negligence imputable to the plaintiff, so as to defeat a recovery on his part?

In Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558, a case involving the question under discussion, the court says: "One voluntarily in a private conveyance voluntarily trusts his personal safety in the conveyance to the person in control of it. Voluntary entrance into a private conveyance adopts 129 the conveyance, for the time being, as one's own, and assumes the risk of the skill and care of the person guiding it. Pro hac vice, the master of a private yacht, or the driver of a private carriage, is accepted as agent by every person voluntarily committing himself to it. When paterfamilias drives his wife and child in his own vehicle he is surely their agent in driving them, to charge them with his negligence. It is difficult to perceive on what principle he is less

. the agent of one who accepts his or their invitation to ride with them. There is a personal trust in such cases, which implies an agency. So, several persons voluntarily associating themselves to travel together in one conveyance, not only put a personal trust in the skill and care of that one of them whom they trust with the direction and control of the conveyance, but appear to put a personal trust each in the discretion of each against negligence affecting the common safety. One enters a public conveyance in some sort of moral necessity. One generally enters a private conveyanco of free choice, voluntarily trusting to its sufficiency and safety. It appears absurd to hold that one voluntarily choosing to ride in a private conveyance trusts to the sufficiency of the highway; to the care and skill exercised in all other vehicles upon it; to the care and skill governing trains at railroad crossings; to the care and skill of every thing except that which is most immediately important to himself, and trusts nothing to the sufficiency of the very vehicle in

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