— The merits of the ease must depend on the construction to be put on the articles, of agreement between the plaintiffs below, which were offered in evidence to show their right to maintain this action jointly.
The first of these articles which was executed between the parties provides for the erection of a mill on the southeast quarter of the northwest quarter of section eight, township twenty, range nine, west; which it is said the copartners have purchased from the government of the United States, together with other stipulations not important to the present question.
The second of these instruments with other stipulations not important to the solution of this question, recites that the co-partners hajointly purchased from the United States several tracts of land particularly described, which it is stated were *177purchased bj' Francis R. Baker, and one tract the locus in quo, purchased by George Baker. It also recites that, “ the interest in the timber on said lots is, by these articles of copartnership, made equal and reciprocal between the copartners. The above joint purchase of land by the above copartners, is designed for promoting the joint interests of the parties, by securing to them, the timber on said land to be sawn into plank at said mills. It is further agreed by the copartners, that whenever to them it may appear expedient to enter or buy land, for timber or privilege, to promote the value of said mills or mill, the purchase shall be made jointly and equal by the copartners.”
These instruments are both signed and sealed by George, and Francis R. Baker.
The parts of these instruments which have been recited, are very defective in form, but we think no difficulty exists as to their true interpretation.
It is by these articles agreed between the parties, that the land was purchased jointly by them, and if it were admitted that an ambiguity is afterwards created by the recital that different tracts were purchased by the parlies individually, the well established rule is that, where two clauses or parts of a deed are repugnant the one to the other, the first shall be received and the other rejected. (Shep. Touch, 88.)
It is a rule equally as well settled, that such a construction should be made as will, if possible, give effect to every part of the deed. This deed further recites that “the interest in the timber on said lots is made equal and reciprocal between the co-partners. The above joint purchase of land by the above co-partners is designed for promoting the joint interest of the parties, by securing to them the timber on said land to be sawn into plank, at said mill or mills.” Now the least possible effect that can be given to this clause, in connection with what precedes and follows it is, that the parties were joint owners of the trees growing on the land, and the instrument, this being its true meaning, will operate as a covenant on the part of each, to stand seized to the use of the other, for an undivided interest in *178the trees growing on the land, which use is executed by the statute.
Is this such an interest as will enable the parties to maintain the action of trespass quare clausum fregit. In the case of Clap v. Draper, [4 Mass. Rep. 266,] it was held on the authority of the case of Wilson v. Macreth, 3 Burrow’s 1824, and other English authorities, that a grant to one, and his heirs forever, of the trees and timber growing on a parcel of land, was an inheritance in the trees, with an exclusive interest in the soil so far as it was necessary for the support and maintenance of the trees : and that the grantee could maintain trespass quare clausum fregit : with this decision, which is sapported by ancient and modern authority, we are satisfied, and it is conclusive of this case, as it cannot in principle, be distinguished from it.
The distinction attempted to be drawn is, that in the Massachusetts case the interest in the trees was an inheritance, and in this case was but a term without actual possession. Without deciding whether, under the decisions of this and other States, in reference to wild or unoccupied land, a lessee who never had actual possession, could maintain trespass quare clausum jregit; no other interpretation, in conformity with the rules of construction, can be put on this part of the instrument, than that they were joint owners in fee of the growing trees. It is true, it is said thatthe above joint purchaseof land is designed for promoting the joint interests of the parlies, by securing to them the timber to be sawn into plank at their mill, but the object of the parties in making the purchase, cannot vary its legal effect. The land being jointly purchased by them for the benefit of the timber, must convey a joint interest in the timber,-and the land being held in fee, we must presume that to be the quality of the estate in the trees, unless a less estate were limited — but there is no such limitation to be found either in express words or by necessary implication.
But the court erred in refusing to give the jury the second charge asked for by the defendant below.
The plaintiff’s son, in cutting the timber which is the ground ©f the action, acted as the servant of the plaintiff in error. The *179master is liable civililer for the acts of his servant done pursuant to his authority. So if the servant, while in the business of his master, by his negligence injure another, the master is liable in an action on the ease. But if the servant act wilfully, and without the command of the master, trespass will not lie against the master. This question was much discussed in the case of McMann v. Crickett, [1 East, 163] in which the English authorities were examined. The case was, that Brown a servant of the defendant, wilfully drove thechariot ofhismaster, against the plaintiff’s chaise, but that the defendant was not himself present, nor did, in any manner, director assent to the act of his servant; and the question was, if for this wilful and designed act of the servant, trespass would lie against the master — and the court held that it would not, [see also 2 Salkeld, 443; Bac. Abridg. title, Master & Servant.]
The evidence in this case vvas, that the trespaas.was committed by the son of defendant below, without his consent or approbation, and contrary to his express directions; the son being sent by the father to cut timber on the adjoining vacant land. Whatever right, therefore, the plaintiffs below may have to redress for the injury complained of, from the plaintiff in error, it •cannot be had in this action of trespass. The son did not act by the command of the father, and whether the trespass were wilful or negligent, no recovery can be had in this form of action.
It is, however, insisted that the son was commanded to commit a trespass on the lands of the government of the United States, and that, therefore, the plaintiff in error is responsible for his acts. Without deciding whether any distinction, as was contended by the counsel for the plaintiff in error, exists between the public lands and the property of individuals, it is sufficient to say that, admitting that there is no difference, the objection to the lorm of the action would prevent a recovery in this ease.
Bet the judgment be reversed and the cause remanded.