[50 Del. 135] Action under Title 25, Chapter 14, Delaware Code 1953, 49 Laws of Delaware 441, for wilful timber trespass. Motion by defendant to dismiss for failure to state a claim because of constitutional invalidity of the statute.
The complaint alleges plaintiffs' ownership of certain lands in Indian River Hundred, Sussex County. It charges that defendant wilfully trespassed upon these lands and removed certain standing timber
and damaged other young timber. Treble damages are sought under the provisions of the cited statute. To justify the multiple damages, it is averred (1) that the lines of the lands were appropriately established and marked by permanent [50 Del. 136] visible markers, and (2) that defendant failed to send notice by registered mail to the plaintiffs of his intention to commence cutting timber.
The act contains five paragraphs designated as Sections 1401 to 1405. Section 1401 reads as follows:
'In civil actions brought for an act of timber trespass the court shall have authority to determine whether such trespass was unintentional or willful and award damages accordingly. If the plaintiff shall satisfy the court that the metes and bounds of his property at the place of the trespass were appropriately established and marked by reasonably permanent and visible markers or establish that the trespasser was on notice that the rights of the plaintiff were in jeopardy, the court shall find that the trespass was willful and shall award exemplary damages equal to triple the fair value of the trees removed plus the cost of litigation. If, however, the court shall find that the trespass was unintentional, the court may award the plaintiff damages equal to the conversion value of the trees taken or damaged plus cost of litigation.'
Section 1402 sets up a permissible formula for ascertaining the value of trees removed, to be used in the absence of a more accurate means of doing so.
Section 1403 reads as follows:
'If the defendant in an action, as provided in this chapter, shall not appear or shall not answer the complaint at the return of the writ or notice served therefor, the court shall determine the trespass willful and award damages accordingly.'
Section 1404 prevents the abatement of an action by the death of either party.
Section 1405 reads as follows:
'In the event the owner or his agent shall not send notice by registered mail to adjacent owners of his intention to commence[50 Del. 137] cutting timber, such owner and/or agent shall be deemed guilty of willful timber trespass and shall be subject to damages accordingly.'
Constitutionality of the Act is questioned upon five grounds which are: (1) it deprives the defendant of his right to a jury trial; (2) it denies to the plaintiff the equal protection of the laws; (3) it deprives the defendant of his property without due process of law; (4) it is discriminatory; (5) it is confiscatory.
Robert W. Tunnell (of Tunnell & Tunnell), Georgetown, for plaintiffs.
Daniel J. Layton, Jr., Georgetown, for defendant.
In arguing that the Act deprives defendant of the right to a jury trial, he construes the word 'court', as used therein, to be synonymous with 'judge'. With this interpretation, I cannot agree. It is undoubtedly true that those words are sometimes used as synonyms in statutes and are frequently so treated by laymen and lawyers. On the other hand, the word 'court' is just as appropriately used to describe a body or organ of the government organized to administer justice, and in this sense it includes both judge and jury. Black's Law Dictionary, 3d ed. 457; 14 Am.Jur. 249. In any given instance, therefore, we must endeavor to discover which meaning was intended by the Legislature.
There is always a presumption in favor of the validity of an act of the Legislature, and as between two possible interpretations of a statute, it is the duty
of the Court to accept that one which will be in harmony with the Constitution, as opposed to one which is in conflict therewith. Collison v. State ex rel. Green, 9 W.W.Harr. 460, 484, 2 A.2d 97, 119 A.L.R. 1422. This basic rule requires us to hold that the General Assembly did not intend to deprive a litigant of his right to a jury trial, unless there be language in the act itself which clearly dictates a contrary holding.
In the present statute, there is nothing in the first paragraph, Section 1401, to suggest an intent to eliminate the right of a jury trial in timber trespass cases. It is argued, however, that the word 'court' in section 1403 is used in contradistinction[50 Del. 138] to 'jury' and that it must be presumed that the word has the same meaning throughout the statute. The true interpretation of Section 1403, in my opinion, is that a defendant, by his failure to appear or answer, admits the trespass and the wilfulness thereof; by his default and the consequent admission, he waives the trial of those issues, leaving the amount of damages as the only matter for determination--an inquisition, in short. His rights with respect to that inquisition--whether it is to be held with or without a jury--are not settled by this Act, but are to be determined by other statutes and rules of practice. In this connection, we must remember that jurisdiction over trespass actions is not restricted to the Superior Court, the only forum in this State attended by a common law jury; under some conditions, such actions may be brought before a justice of the peace or in a Court of Common Pleas. Wherever brought, the assessment of damages depends upon the practice of that particular Court. With this in mind, it becomes clear that the Legislature, in Section 1403, did not prescribe a method of assessing damages but intended that it be done in accordance with established practice. It cannot be held, therefore, that this Act deprives a litigant of any right to jury trial which he would otherwise possess. Cf. Miles v. Strong,68 Conn. 273, 36 A. 55.
In Jordan v. Delaware & A. T. & T. Co., 1 Boyce 107,75 A. 1014, defendant was charged with mutilating certain shade and fruit trees of the plaintiff. The jury was told that it could award exemplary or punitive damages if it found that the cutting was malicious, or wilful and wanton in character. It is extremely doubtful, therefore, whether defendant's motion to dismiss could be granted even if the Timber Trespass Act should be held invalid. Certainly the complaint sets forth a cause of action for actual damages. Moreover, as the complaint also charges wilfulness, it perhaps states a proper case for the allowance of exemplary damages. Notwithstanding all this, it seems desirable to discuss some aspects of the statute, because failure to do so at this stage would simply make such determination necessary at the trial, in all probability.
[50 Del. 139] Besides setting a standard for fixing the amount of exemplary damages, the first paragraph of the Act, Section 1401, when read as a whole, must be interpreted as laying down a rule of evidence. Under it, a plaintiff must of course prove a trespass consisting of the cutting or damaging of standing timber, in order to recover anything. To obtain multiple damages, he must prove wilfulness. He may do this by showing that his property line was properly marked by reasonably permanent and visible markers, or that the defendant was on notice that the plaintiff's rights were in jeopardy. When read literally, the second sentence would seem to require the finding of wilfulness upon such a showing; but, when that sentence is read in conjunction with the others, it is seen that nothing more than a prima facie case is made out, which may be rebutted by showing the trespass to have been unintentional. This paragraph thus does not prescribe a rule of conclusive evidence of the type condemned in Appeal of Brown,
4 Terry 608, 49 A.2d 618, but states a rule of presumption. As such, it cannot be held unreasonable. If a man goes beyond visible markers or is on notice in some way that he is jeopardizing another's rights, and cuts trees upon that other's lands, it is not unreasonable to presume that he did so wilfully, unless he can show that it was in fact unintentional.
The last paragraph, Sec. 1405, is couched in language suggestive of a rule of conclusive presumption, but the true intent is to create a rule of substantive law, for the violation of which a defendant becomes liable for exemplary damages. Cf. 4 Wigmore on Evidence (3d ed.) 714 etc. Its effect is to direct an owner who plans to cut timber to notify the adjoining owners of this intention, and makes him pay treble damages if he fails to give that notice and cuts trees of that adjoining owner. The constitutionality of this section is therefore to be determined not by the law of evidence but by rules of substantive law.
The object of the statute is the better protection of the owners of standing timber. Its adoption was induced by the tendency[50 Del. 140] of some timber cutters to be extremely careless about observing property lines. Obviously, the Legislature became convinced that the evil has become so widespread as to demand stronger deterrents than were provided by the criminal statutes and civil remedies previously existing. Instead of making the criminal law more stringent, it has modified the civil remedy so as to cast greater burdens upon the wrongdoer, subjectively and adjectively. The method adopted seems reasonably suitable to accomplish this purpose. To enforce greater respect for property lines, the trespasser is made to pay treble damages unless his act is unintentional; if the line is visibly marked or if he is otherwise on notice, he has the job of rebutting the inference thereby created. Before he starts to cut, he must notify the adjoining owners, ...