16 Pa. Super. 615 | Pa. Super. Ct. | 1901
Opinion by
The plaintiff petitioned the court below for the appointment of viewers to assess damages claimed by him from the defendant, by reason of the cutting of trees in the erection or maintenance of their lines through his property, under the provisions of the Act of June 2, 1891, P. L. 170. Upon appeal from the award of the viewers, an issue was framed by agreement under the form of an action of assumpsit, upon which it was tried before a jury in the court below. From the judgment entered upon the verdict rendered in that case, as reduced in amount by the court, this appeal is taken.
It is to be observed that the act of 1891, above referred to, does not in any way limit the plaintiff in his claim for damages as to the width or extent within- which the cutting is done. The provisions of the act are very general and will cover any damages which may be suffered by reason of the cutting of trees, whether planted by the roadside or on enclosed or unenclosed land adjoining the same, if done in the exercise of the right of
It is alleged by the defendant that this case was before us in Com. v. Clark et al., 3 Pa. Superior Ct. 141, and that, because the defendants in that case were convicted of wilfully entering upon the land of the present plaintiff and then and there wrongfully cutting down a number of ornamental trees, contrary to the Act of June 8, 1881, P. L. 82, amended by the Act of June 18, 1895, P. L. 196, which cutting was the same as that complained of in the present proceeding; and, inasmuch as the fine imposed upon the defendants in that case, as provided by the act of assembly, went one half to the party or parties injured to pay for damages sustained, and the remaining one half to the school fund of the district in which said offense was committed, the plaintiff is not entitled to recover in this action. It was said by our lamented Brother Wickham, who wrote the opinion in that case: “Nor can we agree to the position that the act of 1881, was repealed or made inapplicable as to the defendants and others similarly situated by the Act of June 2, 1891, P. L. 170, entitled ‘ An act providing for the recovery of damages to trees along public highways by telegraph, telephone and electric light companies.’ The latter act was intended to enable landowners to recover compensation for injuries caused by cutting of trees, under the right of eminent domain, whether exercised regularly or irregularly. The act, under which the defendants were convicted, was intended to punish wrongdoers and deter others from following their evil example. There is no inconsistency between these statutes. Each has its proper office and can and should stand.” Whether or not the plaintiff is estopped from pursuing his remedy under the act of 1891, by reason of the fact that he accepted the one half of the penalty imposed upon the defendants in Com. v. Clark, as the act expresses it, for damages sustained, might become a question, if it were reg
The only other serious question in the case is as to the measure of damages. The court admitted testimony showing the value of the property before and its value after the cutting, and submitted the case to the jury to find the damages, in accordance with the “ before and after ” rule. In this we think there was no error. The commercial idea that the only good tree is a dead tree — that is, that it is only good for lumber — no longer prevails. A tree has much more than a commercial value. Its influence upon climate and water supply has come to be regarded as a question to be reckoned with in determining the conditions under which our increasingly dense population is to live and flourish. Its beauty and sightliness have value in the landscape. Its shade refreshes and shelters and, even as an investment, young trees have an actual money value which cannot be disregarded, or measured by their present value as timber trees. The purpose for which the property was used by plaintiff is also to be considered. It was his summer residence and, as such, the trees added greatly to its value. To measure the
The case was clearly one for the jury and, after carefully considering all the assignments of error and a perusal of all the testimony, we can see nothing, either in what was submitted to the jury or in the manner in which it was submitted, which would justify a reversal. Judgment affirmed.