293 Mass. 454 | Mass. | 1936
This is an action of tort to recover damages for cutting and carrying away wood and timber from the plaintiff’s land.
The plaintiff’s declaration is in two counts. The first in substance alleges that on or about June 1, 1928, the defendant entered upon the plaintiff’s land, and cut down and carried away the plaintiff’s trees and converted them to his own use. The second count alleges that the defendant with force and arms entered the plaintiff’s close, described in the first count, and wilfully and without license cut down, damaged and destroyed the plaintiff’s trees and underwood, and carried the same away, and the plaintiff says that he is entitled to recover three times the
The evidence showed that in 1928 the defendant purchased approximately one hundred sixty acres situated in the towns of Athol and Petersham in this Commonwealth. The land described in the plaintiff’s declaration consisted of approximately sixteen acres, and was included in the defendant’s deeds. When the defendant was negotiating for the purchase of this one hundred sixty acres “the plaintiff standing on his own land pointed out what he claimed was his line, and warned the defendant that if he cut the timber on it he would do so at his peril and protested to the defendant the inclusion of the disputed sixteen-acre piece. Lula D. Pratt claiming ownership of such tract included it, however, in a warranty deed to the defendant” and thereafter he cut and removed the timber standing thereon. Later the plaintiff, by contested proceedings in the Land Court, obtained a decree of registration of the sixteen-acre tract in his name and thereupon this action was instituted. It was admitted by the defendant at the trial “that the plaintiff was the owner of the land described in the declaration; that the defendant entered upon it, cut and removed the timber standing thereon and that the plaintiff was entitled to recover damages in this action.” The trial then proceeded on the issue of damages. Special questions were submitted to the jury who found that there was a wilful cutting within the meaning of the treble damage statute, that the defendant did not have good reason to believe that the land on which the trespass was committed was his own, and assessed single damages at $2,090 with interest from the date of the writ at $264.77, and, the damages being trebled under G. L. (Ter. Ed.) c. 242, § 7, returned a verdict for the plaintiff in the sum of $6,534.77.
The plaintiff offered the testimony of two witnesses, who were experienced lumber dealers and estimators of timber, who qualified as experts on the stumpage value of the various kinds of timber which were cut and removed by the defendant from the plaintiff’s land during the sum
Neal W. Hosley, called by the plaintiff, testified that he lives in Petersham and is connected with the Harvard University Forestry Department as an instructor; that “they have two thousand acres practically all timber land”; that he was educated at Syracuse University and took postgraduate work at Harvard, specializing at Syracuse in forest management which includes measurement of “forest areas, and growing of forest crops, and measurements of forests, meaning measurements of both standing and down timber”; that he had experience at Syracuse and Harvard and on Harvard land in Petersham in measuring and estimating both standing and down timber, and was familiar with the processes for the proper estimates of stumpage on a lot that has been cut; that “there is a definite procedure in making that sort of estimate, recognized in the profession”; that he was furnished with a plan of the sixteen-acre tract, and was on the lot when the cutting had just started in 1928; that his impression was that the hemlock was better than the average. He was asked by counsel for the plaintiff the following: “Tak
The defendant testified as to his estimate of the quantity of timber on the lot, and its value. He stated that the amount of hemlock which was actually cut from the lot and sold in the market was forty-four thousand eight hundred ninety-eight feet. He further testified as to the operating expenses and stumpage values; and that the various kinds of timber on the lot had a total value of approximately $500. Francis Sweeney, who conducted the logging operations on the lot, testified as to his estimate of the number of feet of lumber of the various kinds on the lot. One Fay, the representative of Lula D. Pratt who sold the timber to the defendant, testified that there was approximately one hundred thousand feet of all kinds of
No question is raised by the defendant as to the qualifications of the witness Hosley to testify as an expert as to the quantity of timber that had been cut, and its value. The defendant objected to the method adopted by this witness in estimating the amount of timber on the lot that had been cut by the defendant. It could not properly have been ruled that the methods so employed by this witness were unreliable and should have been excluded. The issue as to how much timber had been cut from the lot was not a matter of common knowledge where nothing had been left on the lot except the stumps and limbs of the trees after the trees had been cut down and removed. This witness was called by the plaintiff and testified as an expert. He testified as to his qualifications on his direct examination. He also stated that he had been upon the lot and he estimated the number of board feet of various kinds of lumber that were cut there. The trial judge ruled that the evidence was admissible, its weight being for the jury. We are of opinion that the ruling was correct and that the defendant’s exception thereto must be overruled. New England Glass Co. v. Lovell, 7 Cush. 319, 321. Commonwealth v. Spiropoulos, 208 Mass. 71, 72, and cases cited. Miller v. Smith, 112 Mass. 470. Ross v. Schrieves, 199 Mass. 401. Shaw v. Keown & McEvoy, Inc. 243 Mass. 221. The wit
The case was submitted to the jury upon instructions to which no objection was made.
As no error of law appears in the conduct of the trial, the entry will be
Exceptions overruled.