delivered the opinion of the court, March 29th, 1886.
It is not denied that the defendants below were trespassers in entering upon plaintiff’s land without making compensation or tendering a bond under the Act of Assembly. The entry was unlawful, and the owners may recover damages therefor in an action of trespass: The Borough of Harrisburg v. Crangle, 3 W. & S., 460. The subsequent giving of security in the mode authorized by statute will not deprive the injured party of his appropriate remedy for trespass: Pa. R. R. Co. v. Eby, 107 Pa. St. Rep., 166. And the plaintiff is entitled to recover for whatever damages he has suffered down to the time of bringing suit, or until a bond is filed and approved by the court: Dimmick v. Brodhead, 75 Id., 464.
The bond of the defendants was filed and approved on the 24th day of July, 1885. It is not disputed that they entered upon the lands in question before that time. It was alleged that the bond was not filed earlier by reason of their not being *143able to find all the owners of the property. This is not mate-rial except perhaps as bearing upon the question of positive damages. A few days after the bond was filed this suit was commenced below, and almost simultaneously therewith a jury of view was appointed to assess the damages under the Act of Assembly.
In the action of trespass the plaintiffs were entitled to recover for the unlawful entry, and for any damages to the property down to the filing and approval of the bond; in the proceeding before the viewers they Were entitled to recover the value of the property taken as in other cases where land is appropriated by a corporation under the right of eminent domain.
So far there is no dispute, and we are in harmony with the rulings of the court below. But upon the trial of this action of trespass the defendants offered to prove that upon the hearing before the viewers the plaintiffs offered to submit, and'did submit, to said'Viewers the question of the value of the timber cut, and asked that the damages sustained therefor be allowed; and that the jury in their report, in pursuance thereof, did allow damages for these .very trees, and for every other injury done to the plaintiffs.
This evidence was excluded by the court, and forms the subject of the third assignment of error.
As the jury were not allowed to pass upon this question we must assume that the defendants could have sustained their offer. If the facts be as stated in the offer, it is too plain for argument that the plaintiffs will be twice paid for their timber. It is manifest this result would be grossly unjust, and indicates either a defect in the law or the mode of applying it. The hardship and injustice in this case is the more marked from the fact that in the action of trespass the jury were instructed that they might, under the Act of Assembly, give double or treble'damages for the timber trees.
While the plaintiffs had a right, as before observed, to their action of trespass for the unlawful entry prior to the filing and approval of the bond, they were not bound to pursue that remedy. They could waive.it and submit their whole case to the jury of view. And if they did so submit it they are bound by it, whether the viewers allowed it or not. An examination of the report, however, leaves little doubt in our minds that the viewers did pass upon it, and allowed the plaintiffs the very damages recovered, in the present suit. The land taken was two and twenty-nine hundredths acres of uncleared timber land on the top of a mountain. The jury allowed for the value of the land taken the sum of $535, and for consequential damages, including “ all timber used, taken away and cut *144on, the land aforesaid,” the further sum of $283. 'As it was. conceded that the timber was alb cut before the bond was filed it seems clear that the jury gave damages for the only substantial injury, complained-of in the action of trespass. If this is so, the plaintiffs in this suit cannot recover even nominal damages, for the plain reason that the plaintiffs cannot submit'a-part of their cause of action to'the viewers and go on with the balance of it in an action of trespass. The law will not allow a party to split up his claim in this, way. ' The rule-, is thus correctly stated by Justice Lowrie. in Simes v. Zane, 24 Pa. St. Rep., at page 244: “But the. rule that prevents'him'[plaintiff] from splitting up his cause' of action into several fragments takes away his right of action for the residue entirety.' 'Having once claimed by action or defence a part of' an undivided subject matter^ the law allows'him no remedy for the other part, else there would-be "no limit, to litigation.” And see Logan v. Caffrey, 30 Pa. St. Rep., 196.
The fifth and ‘seventh assignments of error raise the ques-’ tio.n whether the timber-Act of'1824 applies to this case. The learned 'judge held that it did, an'd in this we think there was error. As was well remarked by Justice Trunkey, in Kramer v. Goodlander, 98 Pa. St. Rep., at page 363: “It is not the purpose of the statute to enable him [the’ owner] to sell his timber at such prices. Its object is the prevention of wilful or careless cutting of another’s timber, by at once punishing -the' wrong-doer and amply compensating the owner.”' It would be a perversion of the spirit of the Act to apply it to such ajease as this." The cutting of the timber was a mere incident' of the taking 'of the land for a public use. It is true the original talcing was a trespass, but it'was a technical trespass merely, and arose from the difficulty of-finding the names of all the owners of the property. That this was a real difficulty seems plain from the fact that the jury of view, in assessing the damages, refer to two of the owners “whose names to the jurors are unknown.” In this-' connection the remarks of Chief Justice Agnew, in Justice v. Nesquehoning Valley R. R. Co., 87 Pa. St. Rep., 23, where there had been a similar unlawful entry by reason of inability to find the -owners, are appropriate:" “ Modern inventions and discoveries have-so far transcended‘the eruditions of former times that to apply the rule as to a mere trespasser'whose entry is-a tort; pure and-simple, to the case of one authorized to enter for a great public purpose, merely because of an irregularity in the manlier of proceeding,-would be ah vain as to attempt to dress a- full-grown man in -the-garb ,o'f his childhood. This is not 'the casé of'a mere trespass by-one having no *145authority to enter, but of one'representing the state ■ herself, clothed with the power of eminent domain, having the right to enter, and to place these materials on the land taken for public use — materials essential to the very purpose for which the state has declared in the grant of the charter. It is true the entry was a trespass, by reason of an omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend beyond his injury.”
In the ease in hand the defendants had the right to take the land and cut the timber for a public use. It was in no sense a wilful or careless cutting of said timber. It was a technical trespass, and for that the-plaintiffs are entitled to recover for the injury sustained. But to hold that the case came within the Act of 1824 would be a misapplication of the law.
The juclgment .is reversed, and a venire facias de novo awarded.