Trefpaffes. An Act for detecting and punishing Trespasses in divers E it enacted by the Governor, Council and Reprefentatives, in General Court Baffembled, and by the Authority of the Jame, That no Perfon or Perfons fhall cut, fel!, destroy or carry away any Tree or Trees, Timber or Underwood whatsoever, standing, lying or growing on the Land of any other Perfon or Perfons, or off or from any fequeftered Lands for Town Common, or any common or undivided Lands in any Town, without Leave or Licence of the Owner or Owners of fuch Lands whereon fuch Trees, Wood, Timber or Underwood was standing, lying or growing, on Pain that every fuch Perfon fo cutting, felling, deftroying or carrying away the fame, or that fhall be aiding or affifting therein, fhall for every fuch Trefpafs, forfeit and pay to the Party or Parties injured or trefpaffed upon, the Sum of Ten Shillings for every Tree of one Foot over, and for all Trees of greater Dimenfions three Times the Value thereof, befides Ten Shillings as aforefaid, and Five may Shillings for every Tree or Pole under the Dimenfions of one Foot Diameter: Which feveral Penalties, Forfeitures and Damages, fhall and vered by Action, Bill, Plaint or Information, upon Conviction of the Trefpaffer or Trefpaffers, as is hereafter especially provided and enacted. be reco Be it further enacted and declared by the Authority aforesaid, That the Pro prietors of the common and undivided Lands in the feveral Townships, are the Perfons trefpaffed upon, by cutting, felling, deftroying or carrying away any Timber, Tree or Trees, growing or lying on the common and undivided Lands in faid Towns: And that the Inhabitants of the refpective Towns are the Perfons trefpaffed upon by all fuch Trefpaffes as aforefaid, done in fequeftered Lands for Town Commons in fuch Towns. Be it further enacted by the Authority aforesaid, That if any Perfon or Perfons shall unlawfully throw down, or leave open any Bars, Gates, Fencë or Fences belonging to or inclofing any common Field, or any Lands held in Propriety or Common, or belonging to any particular Perfon or Perfons within this State, fhall for every fuch Trefpafs, upon Conviction thereof, forfeit and pay to the Party or Parties injured thereby, double Damage; and also a Sum not exceeding Twenty-five Shillings, according to the Nature and Aggravation of the Trespass: To be recovered in Manner as aforefaid. Be it further enacted by the Authority aforefaid, That every Perfon or Perfons that fhall fet Fire on any Lands in this State, that fhall run into any common and undivided Lands, or Town Commons, or Lands belonging to any particular Perfon or Perfons; fuch Perfon or Perfons fetting fuch Fire, or that fhall be aiding and affifting therein, fhall pay and fatisfy to the Owner or Owners of the Lands all Damages that fhall be done by fuch Fire. Be it further enacted by the Authority aforefaid, That no Perfon or Perfons fhall gather, destroy, or carry away any Bayberries ftanding or growing on the Land of any other Perfon or Perfons without Leave or Licence of the Owner or Owners of fach Lands whereon fuch Bayberries were ftanding or growing, on Pain that every fuch Perfon gathering, destroying, or carry ing away the fame, or that fhall be aiding or affifting therein, fhall forfeit and pay to the Party or Parties injured or trefpaffed upon, three Times the Value of the Bayberries fo gathered, deftroyed, or carried away; and alfo the Sum of Three Shillings for every Bufhel fo gathered, befides the faid three-fold Value; and fo after that Rate for a greater or leffer Quantity: To be recovered in Manner as aforefaid. 253 Penalty for cutting down trees on the lands of other persons, &c. And forafmuch as it is at fome Times very difficult to dete or convill any refpaffer or Trefpuffers against this At in the ordinary Method or Course of the coverable. Penalties, When proprietors fhall have the right of action, &c, Penalty for throwing down or leav ing open bars, &c. Penalty for fetting fire on lands, &c. Penalty for gathering. Bayberries on other perfons lands, &c. 1254 If any difpute arife, how adjufted. Ferfons com mitting tref paffes in dif guife to be publicly whipped, &c. Provifo. Towns power relative to fe questered lands. Provifo. Provifo. Burden of proof where to lie. Trefpaffes. the Law, by Reafon the Trefpaffes are generally committed where full Evidence can scarcely be had. Be it therefore enacted by the Authority aforefaid, That in Cafe any Difpute arife upon any Action, Bill, Plaint or Information brought as aforefaid, wherein the Plaintiff, Complainant, or Informer fhall charge the Defendant in Trespass in any of the Particulars aforefaid, or of aiding or affifting therein, then, and in fuch Cafes, if the Plaintiff, Complainant or Informer fhall make Oath that there hath been fuch and fo many Facts committed as are charged in the Declaration, and that he fufpects the Defendant to have committed the faid Trefpaffes, although the Plaintiff, Complainant, or Informer may not be able to produce any other Evidence thereof than to render it highly probable, to the Court, Affiftant or Juftice before whom the Trial is, then and in every fuch Cafe (unless the Defendant fhall acquit himself upon Oath, that he did not do nor caufe to be done the Facts that are charged against him in the Declaration, or any of them, which Oath or Oaths the faid Court, Affiftant, or Juftice are hereby impowered to adminifter) the Plaintiff, Complainant, or Informer fhall recover the Penalties and Damages aforefaid, with Coft: But if the Defendant fhall in fuch Manner acquit himself upon Oath, as aforefaid, the Court, Affiftant, or Juftice may, and ball enter Judgment for the Defendant to recover double his Coft occafioned by fuch Profecution. That if any Perfon or Perfons having their Faces blacked, painted, or any way disguised, shall either by Day or Night commit any of the Trefpaffes aforefaid; or fhall beat or abufe any of the Subjects or Citizens of the United States, or any other Perfon or Perfons whatfoever under the Protection of the Laws of these States, and be thereof convicted by due Courfe of Law, fuch Perfon or Perfons fo trefpaffing, fhall over and above the Penalties and Damages aforefaid, be publicly whipt, not exceeding twenty Stripes ; as the Nature of the Trefpafs may require. Always provided, That the Proprietors of the common, undivided Lands in the refpective Towns, may grant Liberty for the cutting or felling any Tree or Trees, or carrying away any Timber, Wood or Underwood, growing or lying in their common or undivided Lands, under fuch Regulations and Restrictions as they, or the major Part of them in their legal Meeting fhall fee Cause and appoint; and impower their Agents or Attornies in their Place or Stead to profecute any Perfon or Perfons that fhall trefpafs on their undivided Lands, contrary to this Act. And the like Power is hereby alfo given to the Inhabitants of the feveral Towns in their Town Meetings, with refpect to the Timber, Tree or Trees, Wood or Underwood, growing or lying on Lands within their Townships fequeftered for Town Commons, viz. To appoint Agents or Attornies to profecute any Perfon or Perfons that fhall trefpafs upon Lands f questered for Town Commons, as aforefaid. Provided alfo, And it is bereby Enailed, That no Town fhall have Power to prohibit any Perfon or Perfons inhabiting in fuch Town from cutting Fire-Wood, or getting Fencing-Stuff for their own Ufes only, off and from any Lands fequestered for Town Commons, under such reasonable Regu lations as they shall agree to. Provided alfo, That all Agreements upon Record, in any Town in this State, concerning any the Timber, Wood, &c. in this Act mentioned, shall fo far as faid Acts or Agreements concern the Inhabitants of fuch Town getting Timber, Wood, &c. on the common and undivided Lands, or Lands fequeftered for Town Commons in fuch Towns, for their own Ufe only, be, and be holden good and valid; any Thing to the contrary in this Act notwithstanding. And in cafe any Difpute arife about the Ufe for which any of the Wood, Timber, &c. in this Act mentioned is got, the burthen of Proof fhall lie on him who pleads, or avers the Ufe he got fuch Timber, &c. for. Pre Provided also, and it is hereby enacted, That when the Court, Affiftant or Juftice before whom any Trial upon this Act fhall be had, fhall be well fatisfied that the Defendant was guilty through Miftake, and that he really believed the Timber or Bayberries complained of, when growing, were Provifo. upon his own Land; that in fuch Cafe the Defendant fhall be fentenced to pay to the Plaintiff only the juft Value of the Timber felled, taken away or destroyed, or Bayberries gathered, carried away or deftroyed, and Cofts of Trial, and no more. Provided alfo, That nothing in this Act shall be conftrued to prevent or hinder any Town in this State from agreeing in their annual Town-Meeting for fetting Fires in their own Commons, as formerly; in which Cafe the Provifo. Inhabitants of the Town fo agreeing, fhall pay all Damage that shall be done by fuch Fires running and burning in any adjacent Township. Be it further enacted by the Authority aforefaid, That if any Perfon whatfoever shall take any Horfe, Mare, or Drawing-Beaft, other than his own, out of any Inclosure, or Common-Field, or elsewhere,' (except fuch Creature fhall be taken Damage-feafant, and difpofed of according to Law) without leave of the Owner, and fhall ride or ufe the fame; every fuch Perfon fhall pay to the Party wronged treble Damages; or if the Complainant fhall defire it, only Six Shillings. And if the Perfon fo offending fhall be unable to make Payment, then he fhall by Service make Satisfaction therefor. Provided, That all Offences againft, or Breaches of this Paragraph be profecuted within fix Months after the fame are committed. That if any Horfe or other Beaft, fhall trefpafs in any Corn-field, or other Inclosure, being fenced in fuch Sort as fecures against Cows, Oxen, Calves and fuch like Cattle, the Party or Parties trefpaffed upon fhall procure two able Men, of good Report and Credit, to view and adjudge the Harms done; which the Owner or Owners of the Beaft or Beafts fhall fatisfy when known, upon reasonable Demand, whether the Beaft fhall be impounded or not ; but, if the Owner or Owners be known, and near refiding, as in the fame, Town, or the like, Notice thereof fhall be given to him or them, or left at the Place of his or their ufual Abode, before an Eftimation be made thereof, to, the End he or they, or fome other Perfon appointed by him or them, may be prefent when the Judgment is made: The like Notice alfo fhall be left for him or them, of the Damage charged upon them, that if any shall not approve thereof, he or they may repair to the Select-men, or fome of them, who fhall in fuch Cafe nominate and appoint two able and indifferent Men to review and adjudge the faid Harms; which being forthwith difcharged and paid, together with the Charge of Notice, former and latter View and Determi nation of Damages, the firft Judgment to be void, if not to ftand in Law. And that when Damage is done to any Perfon or Perfons, if it appear to be done or happen by the meer Default of him or them to whom the Damage is done, it shall be judged no Trefpafs, and no Damage fhall be given. And be it further enacted by the Authority aforefaid, That when in any Action of Trefpafs brought before an Affiftant or Juftice of the Peace, the Defendant fhall justify upon a Plea of Title, a Record fhall be made thereof, and the Matter of Fact fhall be taken pro Confeffo, and the Party making fuch Plea fhall become bound with one or more Sureties, by way of Recog nizance, unto the adverfe Party, in a reasonable Sum, not exceeding Twenty Pounds, on Condition that he fhall pursue his Plea, and bring forward a Suit for a Trial of his Title at the next Inferior Court of Common Pleas to be holden for the County in which fuch Trefpafs is alledged to be done, and pay and fatisfy all Damages and Cofts, as by the Court fhall be awarded against him; which Recognizance the faid Affiftant or Juftice is hereby impowered to require and take, and shall be paid for the fame by the RecogAizer and for recording the Plea, his legal Fees; and alfo at the Charge of the Penalty for taking another's horfe without leave &c. If unable to pay, then to be bound in fervice. Provifo. 1 Horfes; &c. corn-fields, trefpaffing in fenced, &c. How to pro ceed; &c. Trefpaffes defauit, no done by mere damages, &c. to the faulty party, &c. In action of trefpafs be&c: if the defendant fhall fet up title he hall give bond, &c. and the caufe res ferred to the next county court, &c. 256 If defendant fails, to pay treble dama ges, &c. Defendant failing to give bond justice may proceed on the merits. Preamble. Logs, &c. taken up on Connecticut river to be fe cured, &c. Penalty for felling logs, &c. found floating, in lefs than fix months. Penalties. Reward for fecuring drifts. Forfeiture for taking them away when fecured. If no owner appearwithin 6 months, to be fold, &c. Trefpaffes. the fame Party fhall certify the Procefs and Record of fuch Plea, toge her with the Recognizance, unto the faid next Court; and if fuch Recognizer fhall neglect to bring forward fuch Suit at the faid Court, according to the Tenor of his Recognizance, the Default fhall be recorded, and a Writ of Scire Facias be iffued out of the Clerk's Office of the fame Court, for the Recovery of the Sum or Penalty in the Recognizance mentioned, of him, his Surety or Sureties. Or if upon Trial before the faid Court he shall not make out a Title to the Land or Tenement on which the Trefpafs is laid to be done, paramount to the Poffeffion, or other Title of the adverfe Party, Judgment fhall be rendered for the Party trefpaffed upon for treble Damages, and Coft of Suit. But if the Defendant in Trefpafs, juftifying on Plea of Title, fhall refufe or neglect to become bound in Manner as aforefaid, then his Plea fhall abate; and the Juftice notwithstanding the fame, fhall proceed to try the Caufe, and upon due Proof of the Trefpafs committed by him, fhall award Damages against him according to what fhall be made out, and Coft of Suit. Whereas large Quantities of Logs and other Timber, Shingles and Staves are floated down Connecticut- River, and in a fecret Manner are taken up and clandeftinely difpofed of, fo that it's very difficult in the common Courfe of the Law to prove the fame; fo that great Lofs and Damage thereby happens to the Owners thereof: Which to prevent; Be it enacted by the Governor, Council and Reprefentatives, in General Court affembled, and by the Authority of the fame, That when any Perfon or Perfons fhall take up any Logs, Timber, Shingles or Staves, floating or floated down the faid River, the Logs and Timber being fairly marked, and the Shingles and Staves bundled up, he fhall feize, bind, or well fecure the fame, and that within one Week next after his or their taking up, stopping and feizing the fame, enter the fame with the Kind, Bignels, Length and Marks of the Logs and Timber, the Number of Bundles, and the Kind of Shingles and Staves, and by whom taken up, and the Places where they lie, with fuch Clerk or Clerks where Strays and loft Goods are by Law to be entered; and shall let fuch Logs, Timber, Shingles and Staves lie, without difpofing thereof, or any Ways defacing the Marks thereon, full fix Months after the first entering the fame; on Penalty of forfeiting and paying to the Owner or Owners of fuch Logs, Timber, Shingles or Staves, viz. the Sum of Ten Shillings for every Log or other Stick of Timber not exceeding thirty Feet in Length, and double the Value of fuch Shingles or Staves; and Ten Pounds for every Log or other Stick of Timber which exceeds thirty Feet in Length. And every Perfon or Perfons taking up, safe fecuring, and entering any Logs, Timber, Shingles or Staves, fhall be entitled to a Fee of One Shilling and Two-pence, for taking, feizing and entering any Log of Stick of Timber not exceeding thirty Feet in Length, and the fame Sum for every Bundle of Shingles or Staves; Three-pence whereof fhall be allowed and paid to the Clerk for entering the fame; and Four Shillings and Two-pence for every Log or Stick of Timber which exceeds that Length, Three-pence whereof to be paid to the Clerk, as aforefaid. And that no Owner or Owners of fuch Logs, Timber, Shingles or Staves fhall take away any fuch Logs, Timber, Shingles or Staves, taken up, fe cured and entered as aforefaid, until he has paid the Fees aforefaid, on Penalty of forfeiting and paying to him or them that took up, fecured and entered the fame, as aforefaid, the Sum of Ten Shillings for each Log or Stick not exceeding thirty Feet in Length, and the Value of the Shingles and Staves fo taken up, fecured and entered, as aforefaid, and Five Pounds for each Log or Stick of Timber above thirty Foot long. And if no Owner appear to challenge, and make out his Claim thereto within fix Months next after the Entry thereof, it shall and may be lawful for Trefpaffes. for him or them that took up, fecured and entered the fame to difpofe thereof to his or their own Ufe, without being accountable to the Owners thereof. And when any Difpute fhall arife in any Action brought on this Act, it fhall and may be lawful for the Court, Affiftant, or Juftice of the Peace be fore whom the Trial may be, to proceed to examine the Parties under Oath, and all other Evidence produced; and to make up fuch Judgment therein as to them fhall appear equitable and juft. And whereas there might be confiderable Profit arife by floating of Timber down that Rivolt called Windfor-River, were there proper Provifion made for detecting and punishing fuch as privately take up and difpofe of faid Logs, &c. floating down faid River: Wherefore, Be it enacted by the Authority aforefaid, That whofoever fhall ftop or take up any Saw-mill Logs or other Timber floating down faid River being fairly marked, without the fpecial Direction or Order of the Owner or Owners of fuch Logs or Timber, before fuch Logs or Timber have paffed by the Bridge, fet a-crofs faid River, in the firft Society in Windfor, fhall for every Log or Stick of Timber thus ftopped, pay to the Owner or Owners of faid Logs, &c. the Sum of Ten Shillings. And it is further enacted by the Authority aforefaid, That whofoever fhall deface the Marks made on faid Logs or Timber, or any Way difpofe of, or fell the fame, fhall forfeit and pay to the Owner or Owners thereof, for each Offence, the Sum of Ten Shillings, and double the Value of faid Logs or Timber thus difpofed of, or whofe Marks fhall be purpofely defaced. And when any Difpute fhall arife, in any Action brought on this Act, it fhall and may be lawful for the Court, Affiftant, or Justice of the Peace before whom the Trial may be, to proceed to examine the Parties under Oath, and all the Evidence produced, and to make up such Judgment therein, as to them fhall appear juft and equitable. And in order to compensate for the Damage being done to the Proprietors and Owners of the Lands and Meadows adjoining faid Windfor-River, by Reafon of the Logs, &c. being carried thereon by the Floods : Be it further enacted by the Authority aforefaid, That when Saw-mill Logs, Timber, Staves or Shingles, floating down faid Windfor-River, fhall be carried on to, and lodge on the Meadows or improved Lands of any particular Perfon, it fhall be the Duty of the Owners or Poffeffors of fuch Lands or Meadows whereon fuch Logs, Timber, Staves or Shingles are lodged, to enter an Account of the fame on the Records of the Town-Clerk of the Town where fuch Lands lie, within thirty Days next after fuch Logs, Timber, Staves or Shingles fhall be found lodged, as aforefaid, with the particular Marks thereof and length of the Timber or Logs, and the Place where the fame are lodged, as aforefaid; and the Owner of fuch Timber, Logs, &c. fhall (on proving his Property therein) have Liberty to carry off his Timber, Logs, &c. lodged as aforefaid, on paying the Owners or Poffeffors of fuch Lands his or their reasonable Damages fuftained by faid Timber, &c. remaining on, and in carrying the fame off faid Lands; to be affeffed by the next Affiftant, or Juftice of the Peace, in Cafe the Parties do not agree; and alfo Six-pence for entering the fame on Record as aforefaid. Be it further Enacted, That if no Perfon appears to claim and carry off the faid Logs, Timber, Staves, or Shingles within nine Months after the Record thereof made as aforefaid, the Owner of fuch Lands whereon the fame are lodged as aforesaid, may appropriate the fame to his own Ufe; any Law, Ufage or Cuftom to the contrary notwithstanding. Be it further Enacted, That if any Perfon or Perfons fhall, without Liberty firft had of the Owners or Poffeffors of the Lands or Meadows whereon tuch Timber, Logs, Staves or Shingles are lodged, and the Marks recorded as aforefaid, K k 257 Difpute how to be adjusted, Penalty for ftopping logs, &c. floating down Windfor ferry ris ver, &c. defacing Penalty for marks on logs, &c. Lumber fo ting down difpofed of. faid river how No owner ap pearing in g months after record, may be appropri ated, &c. |