Onondaga County NyArchives Court.....Nixon, Mary Vs. Porter Stillwell 1889
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Source: Reports Of Cases - New York
Written: 1889

MEMORANDUM OF A CASE NOT REPORTED IN FULL.

MARY NIXON, Respondent, v. PORTER S. STILLWELL, Appellant.

Measure of damages for the wrongful cutting of trees — the damages are to be 
determined by the value of the trees to the land on which they stand.

Appeal by the defendant from a judgment, entered upon a verdict in the Onondaga 
County Court on October 19, 1887, and from an order denying a motion for a new 
trial made on the minutes of the court.

The action was in trespass for wrongfully entering upon the land of plaintiff, 
the same being in her possession, and without leave cutting down and carrying 
off trees. Treble damages were claimed under sections 1667 and 1668 of the Code. 
The jury rendered a verdict for the plaintiff for $200 damages, and answered in 
the negative the question whether the defendant, when he committed the injury, 
had probable cause to believe that the land was his own. Thereupon treble 
damages were awarded to the plaintiff.

The court at General Term said: "Upon the exceptions in this case the main 
question relates to the matter of damages. The plaintiff and defendant owned 
adjoining farms. Near the line fence on the north and south line, and on 
plaintiff's side of the fence there were eight basswood trees, three in one 
clump and five in another, that were cut by the direction of the defendant 
without the leave of plaintiff. It was shown, on the part of the plaintiff, that 
the utility of the trees consisted in their furnishing a shade and windbreak for 
cattle. The question was then asked: 'What were those three trees, which were 
first cut down, worth to the land on which they stood for the purpose for which 
they were used?' This was objected to 'as not being the true rule of damages.' 
Several questions of this character were put, in some cases the objection being 
as above and in other cases the expression being added: 'We claim the true 
measure of damages to be the value of the trees as standing there upon the land 
at the time.' No objection to the form of the question in other respects was 
taken. The objection was, in each case, overruled and exception taken. These 
rulings present the question whether, in an action of this kind, it is proper to 
show how the value of the land is affected by the destruction of trees used for 
shade and a wind-break. It is easy to see that their value for wood or timber, 
or as trees simply, may be very little, and still that the land without them may 
be appreciably diminished in value. It is not like the case of destruction of 
fruit trees that have in themselves a productive value. (Whitbeck v. N. Y. C. R. 
R., 36 Barb., 644.) It is rather a case where there may be a special value, as 
connected with the farm, altogether independent of and superior to their 
intrinsic value for purposes of fuel. (Hogeboom, J., in Van Deusen v. Young, 29 
Barb., 19; Wallace v. Goodall, 18 N. H., 456; Chipman v. Hibberd, 6 Cal., 162.) 
It may be that the form of the question was not proper, but no objection was 
made to that. The objection that was made was properly overruled. Upon the same 
subject the court charged that 'the value of the trees merely for wood is not 
the proper measure of damages, but the jury must take into consideration the 
location and the use to which they were put and the value to the land on which 
they stood.' This was not erroneous." *

Giles B. Everson, for the appellant.

W. O. Goodelle, for the respondent.

Opinion by Merwin, J.; Hardin, P. J., and Martin, J., concurred.

Judgment and order reversed and a new trial ordered upon defendants paying costs 
and disbursements of last trial, costs of appeal to abide the event. If costs 
and disbursements of trial are not paid, judgment affirmed, with costs.

* The court considered from the evidence given that the damages allowed were 
excessive, and on that ground granted a new trial.— [Rep.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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