| Ark. | Nov 13, 1911
(after stating the facts). It is insisted, first, that there is no evidence sufficient to sustain the verdict as to' the value of the timber. From the testimony already recited, it will be seen that the value of. the timber cut was variously estimated at from $2 to $10 per thousand feet, and the jury fixed it at $5 per thousand. The suit was brought for treble damages, and submitted to the jury upon the theory that the timber was cut from the lands of the plaintiff wrongfully by the defendant, without it having any probable cause-to believe the timber belonged to it, and the jury could have found single or treble damages, and were not bound to take the estimate of any witness as to the market value of the timber cut. The damages were fixed at $5 per thousand feet for the amount of the timber found to have been cut, and the testimony was sufficient to sustain the verdict, even if the jury intended only to allow single damages, and .certainly it was amply sustained if their intention was to allow treble damages. Doniphan Lumber Co. v. Case, 87 Ark. 168" date_filed="1908-07-13" court="Ark." case_name="Doniphan Lumber Co. v. Case">87 Ark. 168.
It is next contended that the court erred in refusing to give appellant’s requested instruction numbered two. No damage was claimed in this case for injury to the land, but only for the value of the timber alleged to have been wrongfully cut and taken by the defendant under the statute relating to trespassing upon lands, and the court correctly instructed the jury that, in the event they found for plaintiff, they would assess his damages at the market value of the timber cut and removed at the time and place when and where it was cut or three times the actual market value of the timber so cut and taken away, etc., according as the trespass was wilfully and knowingly committed or otherwise.
If said requested instruction was correct in this case, no prejudice resulted from the court’s refusal to give it, since the principal element of damage to the land was the timber unlawfully taken from it, which had in fact a market value, and necessarily its market value would have been the damage to the land, none other being asked by plaintiff; and in any event appellant can not complain that the court limited the plaintiff to 'ess damage than he might have been entitled to under the instruction requested by it.
Finding no error in the record, the judgment is affirmed.