Appellees brought suit against appellants for damages based upon the alleged intentional and willful cutting of trees on appellees’ property. The complaint alleged an intentional trespass upon the land as well as a conversion of the trees. Prior to trial, the issue of liability of appellants was determined on summary judgment and the only questions for the jury were whether or not the trespass by the appellants was intentional and the amount of damages due to appellees. The jury returned a verdict in favor of appellees in the amount of $10,000 for “property damage” and $500 punitive damages. Alleging insufficiency of evidence and jury misconduct, appellants appeal.
1. Appellants first contend that the evidence was insufficient to support a finding that appellants’ trespass upon appellees’ land was intentional. However, there was evidence of discussions with agents of appellants to the effect that the correct property line was known but that, in spite of that knowledge, appellants directed the cutting of trees on the property of appellees. There was further testimony by one of the appellees that even after he specifically instructed one of the appellants as to the location of the property line, agents of the appellants returned and cut additional timber on appellees’ land. Also, Vernon Tart, on whose land appellants had permission to cut timber, testified that he clearly informed appellants as to the correct boundary between his property and that of appellees. Accordingly, the evidence was sufficient for the jury to determine that the actions of appellants were intentional and that, therefore, appellants were willful trespassers.
Autry v. Adams,
2. Although appellees were entitled to recover damages as a result of the willful and intentional acts of appellants, the question remains as to the sufficiency of the evidence to support the verdict for punitive damages as well as general damages. “The measure of damages in cases of trespass to real property is the difference in the value thereof immediately before and immediately after the same is committed . . . .”
Rowland v. Gardner,
If the recovery is for the full value of the timber cut under OCGA § 51-12-50, there can be no additional recovery of punitive damages.
Taylor v. Hammack,
Having set forth the different measure of damages in the two types of actions, let us examine the evidence in the case at bar. First, it is to be noted that the trial court charged as to the measure of damages under both theories and then proceeded to charge as to the right of appellees to recover punitive damages if the conduct of the appellants was willful and intentional. As can be seen from the above authorities, a recovery of punitive damages would not be permitted if the recovery of general damages was on the basis of OCGA § 51-12-50. In the instant case, the trial court did not fully explain when an additional recovery of punitive damages would, and would not, be authorized. However, there was no exception to the charge and, consequently, our determination as to the viability of the punitive damage award depends upon an analysis of the evidence.
There was no testimony, in so many words, as to the diminution in value of the property before and after the trespass. The only evidence as to amount of damages presented by appellees was the testimony of appellees’ expert as to the cost of replacing the trees which had been wrongfully cut and removed. Appellants contend, therefore, that there was no evidence of diminution in market value sufficient to authorize a recovery of general damages for the
trespass to the real property
which would support an additional award of punitive damages. However, it clearly appears that the testimony offered by appellees with regard to tree replacement did not focus on the value of the trees or the lumber resulting therefrom. On the contrary, the evidence
Therefore, it appears that the verdict of the jury for property damage in the amount of $10,000 is sufficiently supported by evidence as to the diminution in the value of the property as a result of the trespass. “If the trespass is wilful, the plaintiff may recover exemplary or punitive damages in addition thereto. [Cit.]”
Holcombe v. Jones,
3. Finally, appellants contend that during the jury view of the property, improper private discussions were had among the various jurors contrary to the instructions of the court. However, this alleged impropriety was not brought to the court’s attention until the filing of the motion for new trial although appellants and their counsel were both present during the jury view. “Unless prompt objection is made to an irregularity or impropriety in the progress of a trial, when known to counsel, it will be treated as having been waived.”
Bragg v. State,
Judgment affirmed.