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Idaho) MENASHA WOODENWARE CO. v. SPOKANE INTERNATIONAL RY. CO. 23

of said section, but is good as an action at common law, which may entitle the plaintiff to recover his actual damages.

[Ed. Note. For other cases, see Trespass, Dec. Dig. § 16.*]

Appeal from District Court, Bonner County; Robert N. Dunn, Judge.

Action by the Menasha Woodenware Company against the Spokane International Railway Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed, and remanded, with directions.

Allen & Allen and Charles L. Heitman, for appellant. John P. Gray, Post, Avery & Higgins, and A. H. Conner, for respondent.

WOODS, District Judge. The respondent sues to recover damages from the appellant for the value of a right of way appropriated and used by appellant through certain lands, including the value of the timber cut from said right of way and used by appellant; for three times the value of the timber alleged to have been cut by appellant, wrongfully and unlawfully, on lands of respondent outside of and adjoining said right of way, and used by the appellant; for damages alleged to have accrued to its whole tract of land, exclusive of the part taken for its right of way, by reason of its severance from that part taken by its right of way; and the grading, construction, and operation of the railroad, and the manner in which the same has been, is now, and will be, done; and for a separate cause of action, alleges that about July 9, 1906, appellant unlawfully, negligently, etc., caused a fire to be started upon its roadbed and lands adjacent thereto, which spread and destroyed 1,653,000 feet of timber, to respondent's damage.

The appellant by answer admitted the construction of its railroad across two forties of respondent's land in 1905 and 1906, without condemnation proceedings; denied that its acts were without the knowledge and consent of respondent; admitted that it cut timher off the right of way and used the same; and admits the value of the right of way was of the sum of $520.70. All other material allegations of the complaint were denied, and appellant offered to allow judgment for said sum of $520.70.

mitting the form of the general verdict to the jury, the same be so framed as to specify and state the amount found upon each separate cause of action, and also in such form that the jury in the general verdict might find for either plaintiff or defendant, and also in refusing its request to require the jury to render a separate verdict upon each separate cause of action set forth in the complaint.

Sections 4396 and 4397, Rev. Codes, are as follows:

"Sec. 4396. The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues either in favor of the plaintiff or defendant; a special verdict is that by which the jury finds the facts only. leaving the judgment to the court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the court but to draw

from them conclusions of law.

In all other cases

"Sec. 4397. In an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. the court may direct the jury to find a special verdict in writing upon all or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.

"The special verdict or finding must be tiled with the clerk and entered upon the minutes. Where a special finding of fact is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly."

[2] The defendant did not request special findings upon any material facts, except as to the amount, if anything, the jury by their verdict should find to be due respondent upon each separate claim made by it against appellant. Whether under the statutes the appellant had a right to have the court comply with its request is not material, for the court by its action did submit to the jury a list of questions to be answered by them, and which were so answered, as fol

lows:

Upon these issues the trial was had before the court with a jury, and on December 23, 1909, the jury returned a general verdict in "We, the jury sworn to try the abovefavor of respondent in the sum of $7,069.80, entitled cause, having found a general verwith interest, and also a special verdict or dict for the plaintiff, make the following findfindings in the form of questions and an-ings of fact, shown by question and answer, swers. On the general verdict and the special findings the court, on the 24th day of December, 1909, signed and entered judgment in favor of respondent and against the appellant in the sum of $10,113.31 and costs. This appeal is from the judgment.

to wit: Question 1. How much do you find for the value of the right of way, including the value of the timber upon said right of way cut by the defendant? Answer: $772 and interest at 7 per cent. from December 1, 1905, up to December 24, 1909. Question 2. [1] The appellant contends that the court How much, if anything, do you find as damerred in refusing its request that, in sub-ages accruing and which will accrue to the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

whole 280 acres described in the complaint, | in the complaint in this action is that apexclusive of the part taken for said right of pellant "wrongfully trespassed upon that way, by reason of its severance from that part of said land adjoining said roadbed, part taken for a right of way, and the grad- and wrongfully cut standing timber thereon, ing, construction, and operation of the rail- and converted the same to its own use." road in the manner in which it has been The words contained in the section of the graded, constructed, and operated? Answer: statute, "without lawful authority," do not $5,090 and interest at 7 per cent. from July appear in the allegation above stated, but 9, 1906, up to December 24, 1909. Question there is the averment in the complaint that 3. How much, if anything, do you find as respondent has been damaged on account damages for timber cut and appropriated by thereof in the following sums, beside interthe defendant from the lands of the plaintiff est, as follows: "(a) * (b) In the sum outside of the right of way, and is such of $2,861.88 besides interest, being three times amount the actual damage found by you to the value of the timber cut by defendant, have been suffered, or three times such dam- wrongfully and without authority, outside age? Answer: $528.40 and interest at 7 and adjoining said right of way upon plainper cent. from August 9, 1906, up to Decem- tiff's land, and by defendant in the construcber 24, 1909. Actual damage. Question 4. tion of its road, and otherwise." How much, if anything, do you find upon plaintiff's second cause of action as damages on account of fire? Answer: $679.50 and interest at 7 per cent. from August 9, 1906, up to December 24, 1909. C. R. Green, Foreman."

This we hold was within the province of the court, was a compliance in substance with the request of appellant, and that there was no error in this action of the trial court. The provisions of the sections of the Revised Codes above quoted answer the objection of appellant contained in its third assignment of error, namely, that the court erred in rendering judgment upon the general and special verdicts, and we pass to the other points urged in argument.

[3] The objection of the appellant that the court erred in entering judgment for treble the value of the timber cut from the land of respondent, outside of the right of way, will now be considered. Section 4531 of the Rev. Codes provides that any person who cuts down or carries off any timber on the lands of another person without lawful authority is liable to the owner of such land in treble the amount of damages which may be assessed therefor in a civil action in any court having jurisdiction. This section is as follows: "Any person who cuts down or carries off any wood or underwood, trees, or timber, or girdles, or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person's house, village, or city lot, or cultivated grounds; or on the commons or public grounds of or in any city or town, or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any court having jurisdiction."

In the case of Barnes v. Jones, 51 Cal. 303, the court says:

"The complaint avers that the plaintiff owned the land, and that the defendants, 'without leave of the plaintiff, wrongfully' entered and cut down and carried off the timber, whereby the plaintiff was damaged in a specified sum, 'contrary to the form, force, and effect of section 251' of the practice act, giving its title and date. There is no averment that the trespass was committed knowingly, willfully, or maliciously. The answer denies that the plaintiff owned any of the land described in the complaint, except a certain specified portion thereof, and that any of the timber was cut on this portion. The court finds that the defendants cut and carried away from the plaintiff's land described in the complaint timber of the value of $1,200; but that they entered 'under a mistake as to the identity of the land, believing it to be a portion of another tract which they claimed by purchase.' The court trebled the damages, and entered a judgment for the plaintiff for $3,600; from which, and from the order denying their motion for a new trial, the defendants appeal.

"The ground chiefly relied upon for a reversal of the judgment is that the court erred in trebling the damages; and we are of the opinion that the judgment is erroneous in this particular. While the statute does not so state in terms, it is clear, we think, that it was not intended to apply to cases in which the trespass was committed through an innocent mistake as to the boundary or location of a tract of land claimed by the defendant. Similar statutes of other states have received this construction, and we are satisfied it is correct. Batchelder v. Kelly, 10 N. H. 436, 34 Am. Dec. 174; Russell v. Irby, 13 Ala. 131; Perkins v. Hackelman, 26 Miss. 41, 59 Am. Dec. 243; Whitecraft v. That section, being identical with the pro- Vandever, 12 Ill. 235. In the case first citvisions of section 733 of the Code of Civil ed, the Supreme Court of New Hampshire Procedure of California, renders the deci- said: "The general tenor of the statute is sions of the California Supreme Court upon such as wholly to preclude the idea that it the construction of such section entitled to was designed to apply to unintentional tresgreat consideration. Before passing to that, passers;' and in Russell v. Irby the Su

entirely clear that the cutting of trees upon divided between appellant and respondent.
another's land, under the impression that This cause is remanded, with directions to
the party had not gone beyond his own the district court to modify the judgment
boundaries, was not within the contempla- in accordance with this opinion.
tion of the Legislature. Moral justice would
forbid any extraordinary infliction in such
a case, and the damages recoverable at com-
mon law would afford an adequte repara-
tion.' *

"The plaintiff, however, contends that the

finding, to the effect that the defendants

committed the trespass unintentionally, and

through mistake, in outside of any issue rais-

ed by the pleadings, and should be disregard-

ed. But, upon our construction of the stat-

ute, the complaint fails to state a case en-

titling the plaintiff to treble damages. It

contains no averment that the trespass was

willful, but only that the entry and cutting

of the timber was wrongful, and without

the plaintiff's leave. The statute has no

application to such a case; and, though good

as an action at common law, entitling the

plaintiff to recover his actual damage, the

complaint does not state a case in which

the damages can be trebled. The judgment

is therefore hereby modified by reducing the

amount thereof to $1,200, and as so modified

is affirmed."

[4] The respondent contends that every

presumption in favor of the validity of the

judgment not negatived by the record must

be taken by this court, and we may concede

that proposition to be true. In our con-

struction of the statute, the complaint does

not state facts sufficient to entitle it to treble

damages. As said in Barnes v. Jones, supra:

"It contains no averment that the trespass

was willful, but (as in the case at bar) only

that the entry and cutting was wrongful and

without plaintiff's leave. The statute has no

application to such a case, and though (the

complaint is) good as an action at common

law, entitling the plaintiff to recover his ac-

tual damages, the complaint does not state

a case in which the damages can be trebled."

We find additional authority for this con-

struction of the statute in cases cited by

appellant. McDonald v. Montana Wood Co.,

14 Mont. 88, 35 Pac. 668, 43 Am. St. Rep.

616, and Endlich, Interpretation of Stats. §

129.

In our view of the law, it is not necessary

to pass upon the question of adding interest

to the amount included in the treble damage.

The respondent, in conceding it to be error

so to do, and in its offer to remit the amount

so erroneously included in the judgment, but

yields to the law.

Subdivision 3 of the judgment for the sum

of $1,594.90 is moɑified to the amount of ac-

tual damages as shown by the special finding

of the jury to the sum of $653.11, thus modi-

fying the aggregate judgment to $8,807.09,

and as so modified the judgment is affirmed.

The entire costs of this appeal to be equally

AILSHIE, P. J., and SULLIVAN, J., con-

cur.

(43 Mont. 102)

The original pleadings after an amendment
are no longer part of the record.

[Ed. Note. For other cases, see Appeal and

Error, Cent. Dig. § 2347; Dec. Dig. § 518.*]

3. APPEAL AND ERROR (§ 609*)-QUESTIONS

PRESENTED BY THE RECORD.

Where a motion to strike out part of the

defendant's answer was sustained, an amended

answer being filed, and the defendant after ver-
dict in her favor sought a review of the action

of the court on the motion to strike under the

provisions of Rev. Codes, § 7118, allowing a re-

view of orders prejudicial to respondent, and

ported copies of the original pleadings and mo-

filed an additional transcript containing pur-

tion to strike, which had neither caption nor

conclusion, nor recitals identifying those docu-

ments, although there was a purported bill of

tion to strike, which incorporated none of these

exceptions, signed by the trial judge on the mo-

papers into the record by reference, the action

of the trial court in sustaining the motion to
strike cannot be reviewed, for, while the order

sustaining that motion is part of the record, the

original pleadings against which it was directed

are no longer a part of the record.

[Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. §§ 2685-2687; Dec. Dig. §
609.*]

4. DIVORCE (§ 144*) - PROCEEDINGS - FUNC-

TIONS OF JURY.

The action of divorce is an equitable action,

and hence, if there be a jury, its office is merely

advisory; its findings not being binding upon

the trial court.

[Ed. Note.-For other cases, see Divorce,
Cent. Dig. §§ 484-487; Dec. Dig. § 144.*]

5. TRIAL (§ 388*)-TRIAL BY COURT-FIND-

INGS STATUTES.

Where a trial is had before the court, the
failure or refusal of the court at the request of

a party to make separate findings of fact is

error, for Rev. Codes, §§ 6763, 6764, provide
that upon a trial of a question of fact by the

in writing, and though section 6766 provides

court its decision or findings must be given

that no judgment shall be reversed for a failure

to make such findings where they are not re- 113. DIVORCE (§ 184*)- RECORD
quested.
PRESENTED FOR REVIEW.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 908-911; Dec. Dig. § 388.*]

6. APPEAL AND ERROR (§ 931*) - REVIEW PRESUMPTIONS.

Where the trial court, sitting as a jury, admits incompetent evidence, it is to be presumed that such evidence was disregarded when the court made its decision.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3766; Dec. Dig. § 931.*] 7. EVIDENCE (§ 151*) - INTENT-ADMISSIBIL

ITY.

In an action for divorce on the grounds of desertion, where the plaintiff's wife, who had been living apart from him, refused to return upon his invitation, testimony of the husband as to his intention in making this invitation is admissible.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 440; Dec. Dig. § 151.*]

8. APPEAL AND ERROR (§ 1058*)-REVIEWHARMLESS ERROR.

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In an action for divorce, where letters admittedly written by one of the parties, though excluded below, were incorporated in the record, the appellate court, in making a final determination of the case, will consider them.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*] 14. DIVORCE (§ 37*)-GROUNDS-DESERTION. tual consent, that consent is not revoked because the husband fails to support the wife when she does not complain, or because he attempts to secure a divorce, where she also seeks to dissolve the marriage, for Rev. Codes, § 3650, provides for a separation by consent, which may be revoked by either of the parties, and in this case there was no revocation; the parties showing a willingness to remain separate.

Where a husband and wife separate by mu

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 120-129; Dec. Dig. § 37.*] 15. DIVORCE (§ 147*) — PROCEEDINGS - QUESTIONS OF FACT.

Whether or not a letter written by a husThe exclusion of material evidence is harm-band to his wife, requesting her to return to less error, where the same testimony has pre- him and resume their marital relations, was viously gone into the record without objection. written in good faith is a question of fact. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4200-4206; Dec. Dig. 1058.*]

9. DIVORCE (§ 119*)-PROCEEDINGS-EVIDENCE -ADMISSIBILITY.

Where a husband and wife separated in 1898 and remained apart for a long time, until the husband finally sought the wife to return home, but she refused, and he sought a divorce upon the grounds of desertion, and the wife also sought a divorce by way of cross-relief, alleging that the original separation was not by consent, and testified to that effect, letters written by her shortly after the separation, in which she showed a friendly interest in the plaintiff and a full understanding of the separation, without expressing any dissatisfaction or desire to end it, are admissible.

[Ed. Note. For other cases, see Divorce, Cent. Dig. § 388; Dec. Dig. § 119.*] 10. EVIDENCE (§ 67*)-PRESUMPTIONS - CONTINUANCE OF CONDITION-DESERTION-SEPARATION BY CONSENT.

Where a separation by consent has been had, it is presumed to continue until one party revokes consent and seeks reconciliation, for Rev. Codes. § 3650, provides that separation by consent is revocable.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. § 67.*] 11. DIVORCE (§ 184*) - REVIEW - HARMLESS ERROR EXCLUSION OF EVIDENCE.

In an action for divorce, in which the issue was whether an original separation was by consent, the exclusion of letters written by one of the parties shortly after the separation, which showed that the separation was by consent, was prejudicial error.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*]

12. APPEAL AND ERROR (§ 843*) — REVIEWSCOPE STATUTES.

[Ed. Note. For other cases, see Divorce, Cent. Dig. § 493; Dec. Dig. § 147.*] 16. DIVORCE (§ 133*) - PROCEEDINGS - EVI

DENCE.

In an action for divorce, evidence held to show that the original separation was by consent, and the husband's offer of reconciliation was made in good faith, and capriciously rejected by the wife.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 446-448; Dec. Dig. § 133.*]

Appeal from District Court, Silver Bow County; J. Miller Smith, Judge.

Action by John R. Bordeaux against Ella F. Bordeaux. From a judgment for defendant and an order overruling a motion for a new trial, plaintiff appeals. Order denying new trial affirmed and decree of divorce reversed, and cause remanded, with directions to enter decree in favor of plaintiff.

L. P. Forestell and I. A. Cohen, for appellant. John J. McHatton, for respondent.

BRANTLY, C. J. This is an action for divorce on the ground of desertion. The trial was by the court sitting with a jury. The jury being unable to agree upon anwers to special interrogatories submitted to them, the court discharged them and rendered judgment, dismissing the action, after refusing plaintiff's request for special findings upon the controverted issues. The plaintiff has appealed from the judgment and an order denying his motion for a new trial.

The parties were married on June 2, 1886, but have lived separate and apart since JanUnder the direct provisions of Rev. Codes, &ary 23, 1898. The complaint was filed on 6253, it is the duty of the Supreme Court, after March 10, 1909. It contains two counts. In determining that a case must be reversed, to de- the first it is alleged that the defendant decide the various questions of law and fact pre-serted the plaintiff on March 19, 1906; in the sented by the record, making such a disposition second the desertion is alleged to have occurof the whole case as the circumstances require. red on March 15, 1907. At the trial the first [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig. count was abandoned. As shown by the allegations of the amended complaint and the

843.*]

evidence introduced, plaintiff's theory of the is in the judgment roll and properly before case is that from January 23, 1898, until us. Rev. Codes, §§ 6784, 6806. [2] The March 15, 1907, he and the defendant had amended answer at which the motion was dilived apart by mutual consent, and that on rected, together with the motion by which the latter date he in good faith sought a rec-alone the stricken matter could be identified, onciliation with defendant and a restoration are not authenticated in any way. The of the marital relation, but that she rejected his overtures and has ever since continued to reject them, thus rendering her guilty of desertion.

pleading as reformed into the second amended answer took the place of the pleading as originally drawn, which, because it was thus superseded and displaced, was no longer a In her second amended answer the defend- part of the judgment roll or of the record on ant denies that she ever deserted the plain-appeal. Raymond v. Thexton, 7 Mont. 299, tiff, and alleges that he willfully and without cause deserted and abandoned her, and for more than a year prior to March 16, 1907, refused to live with her. She asks for a decree granting her a limited divorce and requiring the plaintiff to pay her attorney's fee, and to provide for her separate maintenance. In their effort to reach an issue in the district court, the parties amended their pleadings in several particulars which they deemed material.

[3] When the transcript of the record was filed in this court, counsel for defendant asked leave to file a supplement to it, which he insisted properly exhibited, by bill of exceptions, the action of the court in sustaining a motion of plaintiff to strike from her amended answer allegations deemed by him to be material. Leave was granted, subject to the right of counsel for plaintiff at the hearing to object to the consideration of the supplement as a part of the record. The purpose sought by filing the supplement was to have this court review the action of the trial court upon the motion to strike, under the authority conferred by the statute (Rev. Codes, § 7118), and affirm the decree, if satisfied that, on account of the error in sustaining the motion, it ought to be affirmed, notwithstanding any error committed against the plaintiff in other particulars. This supplemental transcript, in addition to copies of the pleadings upon which the trial was had, contains what purports to be copies of the original complaint, the original and first amended answers, and the motion to strike. It has neither a caption nor a conclusion; nor does it contain any recital identifying these papers or any of them. There was filed with the clerk, however, a document of which the following is a copy: "Title of Court and Cause. Bill of Exceptions. Be it remembered that the court did, on the 1st day of April, 1910, sustain the plaintiff's motion to strike from defendant's second amended answer to which defendant excepted, and then and there prepared and had this her bill of exceptions thereto at the time, which is full, true, and correct. J. Miller Smith, Judge presiding." This document does not purport to bring anything into the record by reference or otherwise. Whether it refers to the motion, a copy of which precedes it, or the other papers, we can but guess. [1] The order sustaining the motion is part of the judgment roli. So far as it is concerned, it

17 Pac. 258; Butte Butchering Co. v. Clarke, 19 Mont. 306, 48 Pac. 303. It could not therefore be considered a part of the record, unless made such by a bill of exceptions properly settled by the judge. This, as we have seen, has not been done. The conclusion must therefore follow, that the only paper before us showing what the action of the court was is the order found in the judgment roll. Whether it prejudiced the defendant we cannot say, because we have no means of knowing the theory upon which it proceeded or what its effect was. The section of the statute referred to, upon which counsel for defendant would rely, whether applicable to an order made anterior to the trial or notand we do not decide whether it is cannot avail him, because the record is not in proper form to give his exceptions material import. The supplemental transcript must therefore be disregarded.

Counsel for plaintiff contends that the decree should be reversed and a new trial ordered because of the refusal of the court to make specific findings. At the time the case was submitted, he not only prepared and submitted written findings, but also had his request for findings entered in the minutes. The refusal by the court to grant the request was clearly erroneous. [4] This is an equity action. The office of the jury was merely advisory. Though they had agreed upon answers to the interrogatories submitted, the result would nevertheless have been a trial by the judge, and the final decision would have been his decision without regard to the action of the jury, for he still had the option to reject these findings and to make others conforming to his own views of the evidence. Lawlor v. Kemper, 20 Mont. 13, 49 Pac. 398; Power v. Lenoir, 22 Mont. 169, 56 Pac. 106; Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717.

[5] Whether request was made for findings or not, it was the duty of the judge to make them. The statute declares: "Upon a trial of a question of fact by the court, its decision or findings must be given in writing and filed with the clerk within twenty days after the case is submitted for decision." Rev. Codes, § 6763. This command is clear and specific, requiring no interpretation. It is true that another section (6766) declares that "no judgment shall be reversed on appeal for want of findings at the instance of any party who, at the close of

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