Plаintiffs initiated this action to recover damages from defendants for the act of defendants’ agent in cutting down certain lilacs: growing near the boundary line of their respective properties. Plaintiffs sought treble dаmages under Sec. 78-38-3, U.C.A.1953. The matter was tried before the court, and plaintiffs were awarded $50 damages, which wеre trebled. Plaintiffs appéal, and defendants cross-appeal.
Defendants were the owners of а piece of real property upon which they had erected an apartment house. They desired to extend the parking lot in an area which was obstructed by large lilacs. Defendants’ son, Bruce, after making certain measurements, as well as observing certain physical objects, determined that the lilacs were situated on his parents’ realty and proceeded to cut the lilacs down to one foot above the ground for a distance of 42 feet. The trial court found that there was no evidence that the сutting was wilful, wanton or malicious, but that it was under a mistake of fact that the lilacs were located on defеndants’ property.
Plaintiffs’ expert witness estimated the value of a bush 15 feet high at $75 to $100. He further estimated that it wоuld cost $50 per bush to dig up the roots of the present bushes, prepare the soil, and plant new bushes.
The trial court ruled that the measure of damages was the difference between the fair and reasonable market value of the property,. including improvements, immediately before and after the injury. The court determined that no evidence was presented to which it could apply this measure; so it awarded nominаl damages of $50, which it trebled in accordance with Sec. 78-38-3, U.C.A.1953.
On appeal, plaintiffs assert that the trial court used the wrong measure of damages and that they were entitled to the costs of *79 restoration, namеly, $75 to $100 plus $50 for planting for each of 16 clumps of lilacs.
In Brereton v. Dixon, 1 this court recognized that there is no inflexible rule as to the appropriate measure of damages for the destruction of or injury to trees attaсhed to the realty. The measure selected is the one which will give the injured party reasonable and adequate compensation for his actual loss as related to his use of the property.
Generаlly, the courts have held that the measure of damages for the destruction of or injury to ornamental or shаde trees or shrubbery is the difference in the value of the land just before and just after the destruction or injury. 2
Wherе the presence of trees is essential to the planned use of property for a homesite in аccordance with the taste and wishes of its owner, where not unreasonable, and where such trees are destroyed by trespassers, the owner may be awarded as damages the fair cost of restoring his land to a reasonable approximation of its former condition, if such restoration be practical, without necessary limitation to diminution in market value of such land. 3 . .
In a determination of the appropriate measure of damages in this area, the cardinal principles are flexibility of approaсh and full compensation to the owner, within the overall limitation of reasonableness. 4
In the instant action, plaintiffs purchased the property for the purpose of procuring a rental unit; and, factually, this case is readily distinguishable from those where the purchasers select a particular lot for a homesite primarily for the beautiful trees. 5 Plaintiffs did not tender any evidence that the fair market value of this rental unit wаs diminished by loss of fhe lilac screen. Furthermore, the restoration measures suggested by plaintiffs were unreasonable both in nature to the damage sustained and the use to which' the property was devoted. In light of the evidence adduced, the trial court did not err in 'its selection of the measure of damages.
Defendants, in • théir • сross-appeal, assert that it was error to treble the -damages under Sec. 78-38-3, U.G.A'.1953,!sinée the trial court spеcifically_ found that the *80 defendants mistakenly thought the lilacs were growing on their property and that there was no evidence that the cutting was wilful, wanton or malicious.
Sec. 78-38-3, U.C.A.1953, provides:
Any person who cuts down or carries off any woоd or underwood, tree or timber, or girdles or otherwise injures any tree of timber on the land of another pеrson, . . . without lawful authority, is liable to the owner of such land, . . . for treble the amounts of damages which may be assessed therefor in a civil action.
Three other jurisdictions have statutory enactments with substantially similar provisiоns; they are California, Deering Cal. Code Civ.Proc., Sec. 733; Montana, Mont. Code, 1947, Sec. 93-6103; and Idaho, I.C., Sec. 6-202. The courts of these jurisdictions have uniformly held that although the statute does not so state in terms, the legislature did not intend that such a penalty should apply to cases in which the trespass was committed through an innocеnt mistake as to the boundary or location of a tract of land claimed by the defendant. 6
Under the facts of the instant action, plaintiffs are not entitled to treble damages; otherwise, the judgment of the trial court is affirmed. Defendants are awarded their costs.
Notes
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. 69 A.L.R.2d, Anno: Damages-Trees and Shrubbery, Sec. 15, p. 1366.
. Thatcher v. Lane Construction Co.,
. Huber v. Serpico, 71 N.J.Supper. 329;
. Samson Construction Co. v. Brusowankin,
. Stewart v. Sefton,