61 N.Y.S. 210 | N.Y. App. Div. | 1899
This action was brought to recover damages for a trespass committed by the defendant in April, 1898, upon the lands of the plaintiffs. The trespass consisted in entering upon tlie plaintiffs’ lands' and mutilating certain trees situate thereon, by cutting off several of their limbs. The action is sought to be maintained as coming within the provisions of sections 1667 and 1668 of the Code of Civil Procedure, treble damages for the injury being demanded in the complaint. '
We must assume that the defendant possesses authority to construct and maintain its poles in the highway opposite the plaintiffs’ premises, and to string wires thereon for the purpose of conveying electricity for lighting the streets and other public places.
The defendant put in evidence a contract between the town of Jamaica and itself, also a franchise granted to the defendant authorizing it to set poles and string wires in the streets of the town. The contract and franchise are not set out in full in the record, but the statement in what they consisted showed authority to erect poles and string wires.- In a proper case the town had authority to make such contract and grant such franchise. (Palmer v. Larchmont Electric Co., 158 N. Y. 231.)
No objection was made by the plaintiffs to the introduction of either the contract or franchise, and no point was made that they were not in all respects sufficient to authorize the defendant to use the streets of the town for the purpose for which it assumed to use them. For the purpose of this appeal, therefore, wé must regard the authority to erect the poles and string the wires as being within the franchise granted by the town.
The evidence given upon the trial was sufficient to establish that
The defendant would have no right whatever to cut or remove any of the branches of these or other trees upon the lands of another, except it showed an existing necessity therefor in the fulfillment of its contract and the enjoyment of its franchise. There is some testimony in the case which would seem to warrant-the conclusion that the poles might have been set so that there would be no necessity for the removal of any of the branches or foliage of the trees, the injury to which is the subject of this action; and if, by the exercise of a reasonable degree of care, they could have been placed and the wires strung so as not to come in contact with the branches of the trees, even though the exercise of such care was not so convenient as the method adopted, the latter consideration would not justify interference with the trees.
It appeared in the testimony that the wires were required to be so placed as not to come in-contact with the trees, for the reason that its effect would be the grounding of the wires, loss of current creating .a short circuit, and the killing and destroying in course of time of the tree with which it came in contact. If the defendant could, by the proper insulation of its wires, prevent the escape of electricity therefrom, then these conditions would be obviated; ■ and if such measures were practicable then the defendant would be required to resort to them, even though they were more expensive and less convenient. In other words, the right to touch the trees at all must be justified by an existing necessity, and if the purpose can be accomplished without extreme or extraordinary means, then no right would exist to interfere in any manner with the trees.
These considerations are sufficient to support the finding of the jury that there was an unlawful entering upon the land and an unnecessary mutilation, of the trees, constituting the trespass of which complaint is made, within the authority of the sections of the Code to which reference has been had, and that the damages found by the jury are not in measure excessive, giving effect to the testimony bearing thereon.
The defendant was, therefore, liable for the trespass committed by its agents, as it must be assumed that the entry upon the land and the cutting of the trees was in the- prosecution of its business, and was authorized and directed by it. The law of the case,, therefore, entitled the plaintiffs to recover.
It is claimed, however, that the judgment must be reversed for errors committed by the learned- trial court in the charge to the' jury. It is insisted that upon the trial the court was requested to charge the jury in these words: “The jury should find whether or hot the injury, if any committed, was casual or involuntary,” and that the court refused so to charge, to which an exception was taken. In view of. the context in the record it may well be doubted whether the question of law. which the request, sought, to present was called to the attention of the court in- such form and manner as to fairly apprise the court of the real nature of the question upon which the.defendant desired the court’s instruction to the jury. But assuming for the present that there was no fault in this regard, we think that' no error was committed by the court .in refusing so to charge. Section 1667 of the- Code provides: “ If any person cuts down * * * any wood, underwood, tree, or timber, or girdles, or otherwise despoils a tree on the land of another, without the owner’s leave; or. on the common, or other land, of a city, village or town, without having right or privilege in •those lands, or license from the proper officer, an action may be maintained against -him by the owner,” etc. The following section
We have examined the other questions presented and find no error therein.
The judgment should, therefore, be affirmed.
All concurred.
Judgment and order affirmed, with costs.