Alberts v. Husenetter

• Decision Date: 07 December 1906
• Citation: 77 Neb. 699,110 N.W. 657
• Parties: ALBERTS v. HUSENETTER.
• Court: Nebraska Supreme Court

77 Neb. 699

110 N.W. 657

ALBERTS

v.HUSENETTER.

Supreme Court of Nebraska.

Dec. 7, 1906.

Syllabus by the Court.

In an action for damages to growing trees, evidence showing the effect the destruction of the trees had on the value of the land is admissible when the nature of the trees destroyed is such that they have no value except with reference to and as a part of the real estate.

It is discretionary with the trial court to permit the jury to view property which is the subject of litigation.

Evidence examined, and held, that the damages awarded were not excessive.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Brown County; Westover, Judge.

Action by Charles Alberts against William Husenetter. Judgment for plaintiff, and defendant appeals. Affirmed.J. A. Douglas and A. W. Scattergood, for appellant.

L. K. Alder, for appellee.

EPPERSON, C.

This action was brought to recover damages for the negligent burning of plaintiff's cottonwood and mulberry trees. Plaintiff recovered judgment in the court below, and defendant appeals.

The most important question argued pertains to the admission of evidence as to damages sustained. Plaintiff, as a witness in his own behalf, was asked: “Now, what effect does it [the grove] have upon the value of the land for the purposes for which you were using or preparing it, as a ranch?” Another witness was asked: “Now, can you fix the value of those trees in the grove there, standing there as growing timber, taken in connection with the effect they would have on the value of the land just prior to the fire?” Questions of like import were asked of other witnesses. Defendant's objections to these questions were overruled. The answers were favorable to plaintiff and prejudicial if erroneous. The question was before the court in K. C. & O. R. R. Co. v. Rogers, 48 Neb. 653, 67 N. W. 602. During the trial of that case, a witness testified to the amount of damages to his trees. On cross-examination, he was asked to give the basis of his valuation, and answered: “Because they were worth that to me as ornamental trees. Q. What are the elements that enter into the estimate that you have made? A. Adding to the value of the land and farm.” It was held that a motion to strike out this testimony as to value was properly overruled. In the case at bar, the elements making up the witnesses' estimates of the damages were shown by the direct, instead of the cross, examination. Otherwise, the two cases as to this point are similar. We can see no difference in principle. Plaintiff herein did not attempt to recover for damages to his land, nor to measure his damages by the difference in the value of the land before and after the fire. The witnesses testified to the value of the damaged trees before the fire and their value afterwards. In arriving at the value of the trees, it is shown, by the evidence objected to, that they considered the trees valuable because they added to the value of the land. They were of little or no value when severed from the land. In other words, the wood or lumber when severed could not be practically utilized. This being true, the trees would have no market value. But it does not follow that they were worthless. In this state, there is little natural timber, and, in the western portion of the state, but little timber of any kind. Brown county is in the territory unfavored by nature in this respect. Trees have a value independent of their intrinsic worth as wood or for other purposes for which they may be practically utilized. They are ornamental; they furnish shade in the summer, and shelter in the...