
    Samuel N. Simpson, et al., v. Mary E. Woodward.
    
      Error from Douglas County.
    
    1. Damages : Trebling the Same. — When in a suit founded upon the provisions of chapter 208, Comp. L., all of the issues were submitted to the decision of a referee, and his findings of the facts necessary to sustain the suit were in favor of the plaintiff, it was not error for such referee to treble the damages actually proved.
    2. Record : Presumptions. — Where, iu such a case, none of the evidence is preserved, and there is no affirmative showing to the contrary, it will be presumed that the referee heard and decided tho issues submitted, upon testimony applicable thereto and properly admissablo under the pleadings.
    
    
      In addition to the statement of facts contained in the opinion, it may be mentioned that the referee found that the plaintiff* was guilty of “ entering upon the premises of the plaintiff, and of wrongfully cutting down and car - rying away a certain quantity of trees and timber, the property of the plaintiff, and of the value,” etc.; but the record does not disclose any finding that the trees so cut down and carried away were “ placed or growing for use, shade or ornament;” nor did the referee find that the trespass was committed within the year preceding the commencement of the action.
    The record does not contain the evidence introduced before the referee, but contains the findings of law and fact and the other proceedings in the case.
    
      Thacker Banks, for plaintiff in error.
    
      Charles Chadwick, for defendant in error.
    
      For plaintiff, it was submitted:
    1. The facts found by .the referee are not sufficient to sustain his finding of law that the judgment shall be for treble the value of the property alleged to have been taken. To justify that conclusion it should appear that the suit was brought within one year after the cause of action accrued. The statute under which the action was brought, is penal. The judgment prayed for, is in its nature a penalty. The record of the proceedings therefor should receive a strict construction, and all the elements necessary to sustain an imposition of the penalty should affirmatively appear. 8edg. on Dam., [4i/i Fd.~\ 
      675; Barnes v. 'Williams, 11 Wheat, 415; Sloan v. Johnson, 14 8m. and M., 47.
    2.It does not appear by the record that the trees cut down and carried away, were “placed or growing for use, shade or ornament,” as the statute requires. [ Comp. L., Chap. 208.] A trespasser on timber land is liable only for the actual damages, unless he is shown to have committed the acts specified in this penal statute. The findings of the referee do not bring the case within its specifications.
    
      Chadwick, for defendant, maintained:
    1. The statute gives in eases like the one at bar as compensation to the plaintiff, and to punish the trespasser, treble the value of the trees cut. Comp. L., 896, § 1; Gen. Stat, 1,095, § 1.
    2. If the case had been tried by a jury the augmented damages could have been assessed, and a verdict for the treble value rendered. Sedg. onDam., 571; Newcomb v. Butterfield, 8 Johns., 345.
    3. The report like the verdict of a jury is conclu- ■ sive upon questions of fact. 5 Barb., 469; 3 Comst ,168; 3 Barb., 119; 7 Wend., 179; 6 Barb., 141; 7 id., 271; 12 id., 261.
    4. The record failing to set forth tlie evidence it will be presumed that there was sufficient in the case to sustain the finding of the referee. His report stands as the decision of the court, and judgment was correctly entered thereon. Gen. Stat, 685, § 293.
    5. The record shows that the action was not barred.
    
      
      1. Penalty for Cutting Timber. — The penalty provided for in chapter 203, Comp. L., applies to the cutting and carrying away of “any timber, rails or wood standing, being or growing on he lands of another,” and includes standing trees.
      
        2. Limitation of Actions. — It seems tliat the record need not show that the trespass was committed within the year next preceding the commencement of the action; this will be presumed where the record does not contain the evidence, and where no showing is made to tho contrary.
      3. Trespass : Findings of Referee. — It is sufficient in such an action for the referee to find that the defendant cut and carried away timber of the plaintiff: it seems that the report need not show that such timber was “placed or growing for use, shade or ornament.’' *
    
   By the Court,

Safpord, J.

This was an action brought in the district court of Douglas county by the defendant in error against the plaintiff in error, to recover damages for the wrongful cutting and carrying away of timber, trees and wood from the lands of the said defendant in error, by the said plaintiffs in error, and was founded upon the provisions of chapter 208, compiled laws, 1862. The issues were made up between the parties by the filing of their respective pleadings, all of which was done in due course of law, as appears by the record. After the making up of such issues, all of the parties appearing in open court, and consenting thereto, an order was made and. entered on the journal, by which the cause was “referred to a referee to hear and determine the same upon the issues joined between the parties.” Pursuant to such order of reference,, the cause was afterwards heard upon the pleadings and upon the evidence submitted by the parties, and was argued by counsel.

The finding of the facts by the referee was substantially as they were laid in the petition, and the value of the timber and trees found to have been carried away, as alleged, was fixed at the sum of -two hundred and one dollars and .seventy-five cents. Thereupon the said referee found as a conclusion of law, as follows: “ That the said plaintiff is entitled to recover of and from the said defendants treble the value of the property so taken, as aforesaid, to-wit: the sum of six hundred and five dollars and twenty-five cents.” A report of the proceed-' ings of the referee, showing his said findings of fact and conclusion of law, was duly filed in the office of the clerk of the court making the reference, and was afterward brought to the notice of such court upon a motion to confirm and for judgment thereon. But the defendants below objected to such confirmation and moved the court to set aside the said report ou the sole ground “ that the referee had trebled the damages,” when there were no facts found in the case sufficient to authorize him to do so. This motion was overruled and the court -proceeded to render judgment according to the findings of the referee. To these rulings and judgment exceptions were duly taken. We must confess our inability to see much force in the reason given in support of the motion to set aside the report, inasmuch as it appears to us that the facts found are such as bring the case fully within the provisions of chapter 208, above referred to.

Damages for ^rebSngThT1 It is there enacted, “ that if any person shall ' «/a cut down * * * * or carry away any tree, * * * growing for use, * * * or any timber, rails, or wood, standing, being or growing on the land of any other person, * * * * * the party so offending shall pay to the party injured, treble the value of the thing so injured * * * * * or carried away, with costs. Now, if the law here stated (and we think it a fair reading of section one of said chapter 208) does not sufficiently meet the case as made by the facts found, and so as to be applicable thereto, we cannot discover the point of failure. The findings are that the defendants below entered upon the premises of the plaintiff and wrongfully cut down and carried away a certain quantity of trees and timber, the property of the plaintiff, and of the value of two hundred and one 75-100 dollars, showing in our judgment just that state of facts, in respect of the action of the defendants in the premises, which is intended to be provided against in the statute and which authorizes the infliction of the penalty of treble damages. But it is argued that the penalty of the statute lies against the cutting down and carrying away of only a particular kind of trees, etc. Such a construction might possibly obtain were it not for additional words which are introduced, and which are so broad in their signification as to include almost everything in the shape of forest growth, whether cut down or not. Thus the penalty attaches to the carrying away of “'any timber, rails or wood, standing, being, or growing on the lands of another.”

The word timber, in common parlance, is often applied to standing trees, and that it includes, at least such standing trees, as here used, is shown by the use of the word “ standing,” which follows in the same sentence and evidently refers to the term “ timber.” But in order to carry away such “ timber,” or “ standing trees” they must be cut down, so that b'y necessary construction when the statute provides against such carrying away of such timber, meaning standing trees, it is but reasonable to hold that the cutting thereof is as well included, and the referee, as before shown, says that the defendants below both cut down and carried away, etc. Taking then the whole statute together we cannot see the shadow of a just reason for holding that the wrongful cutting and carrying away of any land of trees of value from the lands of another is not made the subject of the penalty named; so also in regard to the carrying away of such trees, etc. This act of itself comes within the statute and incurs the penalty. But it is further contended that the findings do not «show that the trespasses charged were committed within one year from the commencement of the suit. This may he true, but do they show the contrary ? And on the other hand, does not the whole ease taken together show that the trespasses were not barred ? The petition most certainly is sufficient in this respect, and no special issue is tendered by the answer as applicable to the point raised. IIow then shall we say, in the absence of any of the testimony or any other showing whatever, that the referee went outside of the case as presented upon the pleadings, and heard unauthorized testimony. Shall we not rather presume in favor of the correctness of the proceeding of the referee, and that the facts which he found, were proven by testimony which was applicable and proper to be introduced. But besides this, when counsel press this argument, they ask us to presume that testimony was erroneously received and considered by the referee, when, if such was the fact, they had only to preserve such testimony and their objections thereto to make it manifest. This they have wholly failed to do. It is farther objected that the referee exceeded his authority in trebling the damages; that he should have left this for the court. We do not see that any practical importance can be attached to the question here raised. The actual value of the property carried, away having been found, and the facts of the trespass being shown, the law fixed the amount of damages at treble the amount so found; and it could make no difference whether it was declared by the referee or by the court. We think, however, that it was proper for the referee to make the finding, as a jury might have done under the direction of the court, had the case been so tried. A point is made as to the jurisdiction of the court, but if our views as above stated are correct, this question does not properly arise in the case.

We are of the opinion that the judgment below should be affirmed.

Kingman, C. J., concurring.

Valentine, J., not sitting in the case.  