The opinion
Hathaway, J.,
did not concur, and submitted his views as follows: —
The opinion states correctly that a trespass may be involuntary or by mistake, “ when a person believes he is' doing an act upon’the land of another by permission, when in fact he is not,” &c. If a man get over the line between him and his neighbor by mistake, and cut a tree, supposing he is on his own land, or if he suppose he has permission when in fact he has not, the act is voluntary; the trespass is involuntary. He did .not intend to do wrong. In this case the defendant made the road supposing he had lawful permission; he was mistaken. True, he neglected to inform himself that the road was not legally laid out; and so, the man who got over the line neglected to inform himself where the line was, and he who cut without permission, supposing he had one, neglected to ascertain the fact; there is a distinction in the cases, but too shadowy, I think, to make a difference.