Laser v. Jones

Smith, J., (after stating the facts). This action was instituted under section 7976 of Kirby’s Digest, and so much of that section as is relevant here, reads as follows : “If any person shall cut down, injure, destroy, or carry away, any tree placed or growing for use or shade, or any timber, rails or wood, standing, being or growing on the land of another person, * * * in which he has no interest or right, standing or being on any land not his own, or shall wilfully break the glass, or iany part of it, in any building not ibis own, every person so trespassing shall pay the party injured treble the value of ■the thing so damaged, broken, destroyed, or carried away, with costs.”' (1) It is evident that the action there provided for is not the common law action of trespass upon reial estate. On the Contrary, a statutory action is provided whereby the owner of the shade trees and certain other property may recover as damages treble the value of such property, against one who wilfully destroys it. , The question for decision therefore is, What is the measure of damages against one who willfully destroys shade trees growing and being on the lands of another? In the ease'of Fogel v. Butler, 96 Ark. 87, it was said that the word, value, as here employed, meant market value. The term “market value” is one which has been defined, in its various applications, in many decisions. A number of these definitions are given in Words and Phrases, under that title, and among others so given are the following: “In estimating the market value of property, all capabilities of the property ¡and all uses to which it may be applied are to be considered. Seaboard Air Line Ry. v. Chamblin, 60 S. E. 727, 108 Va. 42.” “The ‘market value of property’ is its value for any use to Which it may be adapted, and in estimating its value '-all 'the uses of which 'the property is susceptible should be considered, and not merely the condition in which it may be at the time and the use to which it may have been put by the owner. In re Westlake Ave., 82 Pac. 279, 281, 40 Wash. 144 (quoting and adopting the definition in Seattle & M. R. Co. v. Murphine, 30 Pac. 720, 4 Wash. 448).” The .statute refers to “'any tree placed or growing for use or shade,” and this language indicates the intention of the Legislature to permit the jury to consider the use 'to which any tree was adapted in /assessing the damages for its destruction. It is a matter of common knowledge that there are many trees which have but little value, except for shade; yet such trees would add greatly to the value of any property where -shade was desired. (2) It is, therefore, proper to consider the use which may be, and is, made of the tree, and if the tree adds 'to the value of 'the land, while its destruction detracts from its value, then this difference in value is the measure of the recovery, even against one who, without malice, destroys it. But if the tree was maliciously destroyed, the damages recoverable are treble this value. The instruction of the court was, therefore, correct and 'the judgment is •affirmed. McCulloch, C. J., and Hart, J., dissent.