Mitchell, in using the plaintiff's land, was not acting as a servant or agent of the defendant, but was acting independently. If the defendant is responsible for the acts, it is because of his advancements to Mitchell after he learned that the wood was on the plaintiff's land, or because of his reply to the sheriff's inquiry about the ownership of the wood. The payments furnish no ground for such responsibility. The securing of a place for "yarding" the wood was Mitchell's affair and not the defendant's; and besides, so far as appears, the defendant may have understood at the time of the advancements that Mitchell had obtained the plaintiff's permission to use his land for the purpose.
The plaintiff apparently proceeded on the assumption that the ownership of the wood fixed the liability for the trespass. His instruction to the officer was to inquire of the defendant on this subject, and not to serve the writ against him unless he claimed to own the wood. The officer limited his inquiry accordingly. The defendant undoubtedly is estopped from denying the truth of his answer in consequence of the plaintiff's action in reliance upon it, and for the purposes of the case must be regarded as the owner. Although ownership of the wood was a fact to be considered in determining the question of the defendant's liability, it did not establish the liability as a matter of law. The wood was composed of inert objects which would not have been upon the plaintiff's land unless placed there by some one. The trespass arose from the acts of placing it there and not from its ownership. Unless the defendant directed or authorized these acts he was not the trespasser. His assertion that he owned the wood fell far short of being an admission that he committed the trespass. He did not say that he directed, authorized, or ratified Mitchell's acts, and from what appears in the case it cannot be held as a matter of law that he did.
Exception overruled.
PARSONS, J., did not sit: the others concurred. *Page 460