Hoit v. Stratton Mills

Sargent, C. J. The instructions asked for should have been given, with the modification of the last clause as to the increased value of the increased growth. The damages for leaving the timber on the plaintiff’s land beyond the reasonable time for its removal, cannot, by any rule that we are aware of, be recovered in this action of trespass under either count in the declaration. This damage had all accrued before the trespass complained of, and was not in any way increased [455] or affected by the trespass, either of breaking and entering or of carrying away. This damage may, no doubt, be recovered in some form of action, but not in this. The instructions, in regard to the reasonable time within which the timber should have been removed, were correct, and also the instructions in relation to the timber cut before the expiration of such reasonable time, but not removed till afterwards. As to the timber cut and removed after the expiration of such reasonable time, the instructions should have been that the measure of damages would be the actual damage occasioned by such entry as above explained ; and if the market value of such timber had increased after the expiration of such reasonable time, the plaintiff would be entitled to recover in this action for the increased value of such increased growth, but not for the increased growth itself, because that would bo paid for in the increased measure of the timber at the agreed price per thousand, — not, in this action, for the damage to her land by its being occupied by the trees after the expiration of such reasonable time, though the latter might be recovered in some other form of action. At first it seemed somewhat doubtful about recovering the increased value of the increased growth in this action, but upon further consideration we are satisfied that this increased value was simply the gain which the plaintiff had been enabled to realize from his wrongfully using the plaintiff’s land to afford nourishment to his trees, and that the plaintiff should have had a lien upon the timber till such extra charge was paid, and that the defendants, by taking away this increased value of the increased growth, without right, would be liable for the same in this form of action. If a remittitur of the nine dollars be entered, the plaintiff may have judgment for the one dollar damages done to the land by the entry, and the eight dollars and thirty-three cents the increased value of the increased growth of the timber. In that way there may be Judgment on the verdict.