Marshall v. American Telegraph & Telephone Co.

Opinion by Beaver, J., The plaintiff petitioned the court below for the appointment of viewers to assess damages claimed by him from the defendant, by reason of the cutting of trees in the erection or maintenance of their lines through his property, under the provisions of the Act of June 2, 1891, P. L. 170. Upon appeal from the award of the viewers, an issue was framed by agreement under the form of an action of assumpsit, upon which it was tried before a jury in the court below. From the judgment entered upon the verdict rendered in that case, as reduced in amount by the court, this appeal is taken. It is to be observed that the act of 1891, above referred to, does not in any way limit the plaintiff in his claim for damages as to the width or extent within- which the cutting is done. The provisions of the act are very general and will cover any damages which may be suffered by reason of the cutting of trees, whether planted by the roadside or on enclosed or unenclosed land adjoining the same, if done in the exercise of the right of [620] eminent domain. If, however, there had been negligence or wantonness or unnecessary cutting the remedy would have been trespass: Stork v. Phila., 195 Pa. 101; Chatham Street, 16 Pa. Superior Ct. 103. In view of this, the distinction sought to be made between what was necessary fco be cut as interfering with the wires, and what was done outside of the immediate reach of the wires becomes unimportant; in view of all the evidence in the case which fails to show any prescribed limits for the right of way. It is alleged by the defendant that this case was before us in Com. v. Clark et al., 3 Pa. Superior Ct. 141, and that, because the defendants in that case were convicted of wilfully entering upon the land of the present plaintiff and then and there wrongfully cutting down a number of ornamental trees, contrary to the Act of June 8, 1881, P. L. 82, amended by the Act of June 18, 1895, P. L. 196, which cutting was the same as that complained of in the present proceeding; and, inasmuch as the fine imposed upon the defendants in that case, as provided by the act of assembly, went one half to the party or parties injured to pay for damages sustained, and the remaining one half to the school fund of the district in which said offense was committed, the plaintiff is not entitled to recover in this action. It was said by our lamented Brother Wickham, who wrote the opinion in that case: “Nor can we agree to the position that the act of 1881, was repealed or made inapplicable as to the defendants and others similarly situated by the Act of June 2, 1891, P. L. 170, entitled ‘ An act providing for the recovery of damages to trees along public highways by telegraph, telephone and electric light companies.’ The latter act was intended to enable landowners to recover compensation for injuries caused by cutting of trees, under the right of eminent domain, whether exercised regularly or irregularly. The act, under which the defendants were convicted, was intended to punish wrongdoers and deter others from following their evil example. There is no inconsistency between these statutes. Each has its proper office and can and should stand.” Whether or not the plaintiff is estopped from pursuing his remedy under the act of 1891, by reason of the fact that he accepted the one half of the penalty imposed upon the defendants in Com. v. Clark, as the act expresses it, for damages sustained, might become a question, if it were reg [621] ularly raised, but the record in that case was not in evidence in the court below. It is true that in an objection to the plaintiff’s general offer to show the cutting on the trial of the case, it was alleged “that the record of the court of quarter sessions of Berks county shows that the injury complained of, in so far as it was a trespass, was adjudicated in a prosecution by the commonwealth against William H. Clark and others, the employees alleged to have done the injury, in which they were convicted and fined; ” but this record was not then, nor was it afterwards, offered in evidence. If the admissions made by the plaintiff in his paper-book had been made in the court below, they might have been regarded as equivalent to the admission of the record in evidence but, so far as the record shows, no such admissions were made at the trial, and we must dispose of the case upon what was before the court in the trial below and not upon what appears here. We can, therefore, see no objection to a recovery, as the record is presented to us, the original receipt of Wilson, the owner of the land at the time the line was originally constructed, being manifestly insufficient to cover all that was done by the defendant upon tbe property of the plaintiff. The effect given to it by the court was certainly all that could properly attach to it. The only other serious question in the case is as to the measure of damages. The court admitted testimony showing the value of the property before and its value after the cutting, and submitted the case to the jury to find the damages, in accordance with the “ before and after ” rule. In this we think there was no error. The commercial idea that the only good tree is a dead tree — that is, that it is only good for lumber — no longer prevails. A tree has much more than a commercial value. Its influence upon climate and water supply has come to be regarded as a question to be reckoned with in determining the conditions under which our increasingly dense population is to live and flourish. Its beauty and sightliness have value in the landscape. Its shade refreshes and shelters and, even as an investment, young trees have an actual money value which cannot be disregarded, or measured by their present value as timber trees. The purpose for which the property was used by plaintiff is also to be considered. It was his summer residence and, as such, the trees added greatly to its value. To measure the [622] damages in this case, therefore, by the value of the young and growing trees which were cut down, under the direction of the defendant, bj, their value for commercial purposes would be manifestly wrong. We know of no better rule than the one which was adopted by the court and submitted to the jury. It is true that, in adopting this rule, sentiment enters more or less into the estimate put upon the value of the trees by some of the witnesses but it is sentiment of a substantial character which may well influence the owner or intending or prospective purchasers, and this was counterbalanced, or at least attempted to be,, by the testimony of the defendants, in which the difference in value based upon the use of the property owned by the plaintiff as a mere farm was given and, of course, had weight in the minds of a jury of practical men. The case was clearly one for the jury and, after carefully considering all the assignments of error and a perusal of all the testimony, we can see nothing, either in what was submitted to the jury or in the manner in which it was submitted, which would justify a reversal. Judgment affirmed.