213 N.Y. 136 | NY | 1914
The action is to recover the damages from the burning of lands and the timber upon them of the plaintiff through the negligence of the defendant. • The question presented is whether or not the trial court erred in directing the judgment rendered at the trial.
The lands were a part of the forest preserve of the state. The finding of the jury that the defendant negligently caused the burning has been affirmed by the Appellate Division and is not here attacked. The measure of the damages upon the trial as stipulated by the parties was the difference between the market value of the lands immediately prior to the burning and their market value immediately after it. The trial court submitted to the jury in reference to the damages, the two theories indicated by the two questions it required them to answer: “1. What is the amount of damages assum
The embarrassment and action of the trial court were caused by the provision of the Constitution of the' state: ‘1 The lands of the State, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber .thereon be sold, removed or destroyed.” (Art. VII, sect. 7.) The constitutional inhibition of the selling, removing or destroying the timber induced the plaintiff, although it had proven the market value of the lands, including the value of the timber, immediately prior to the burning, to prove the value of the market value of the land excluding the valué of the killed or dead timber immediately after the fire and the court to direct the judgment for the difference in such values. In this the court erred and in two respects: First. It did not apply the stipulation of the parties, but in the place thereof it made as the measure of damages the difference between the market value of the lands with the timber thereon immediately before the fire and.the market value of the lands without any of the timber remaining, but killed and designated by the trial court as “salvage,” immediately after the fire. The fair and reasonable interpretation of the stipulation forbade the court from giving to the words “market value” a meaning wholly unaffected by the Constitution when applied to the condition prior to the fire and a meaning affected by the Constitution when applied to the condition after the fire. If the market value
The judgment should be reversed and a new trial granted, with costs to abide the event.
Werner, Hisoook, Chase, Hogan and Cardozo, JJ., concur; Miller, J., not voting.
Judgment reversed, etc.