Barnes v. Arkansas-Missouri Power

• Decision Date: 02 March 1926
• Docket Number: No. 3908.,3908.
• Parties: BARNES v. ARKANSAS-MISSOURI POWER CO.
• Court: Missouri Court of Appeals

281 S.W. 93

BARNES v. ARKANSAS-MISSOURI POWER CO.

No. 3908.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Suit by E. L. Barnes against the Arkansas-Missouri Power Company. Verdict for plaintiff was trebled, and judgment rendered thereon, from which defendant appeals. Reversed and remanded.

Hugh B. Pankey and Hal H. McHaney, both of Kennett, for appellant.

Smith & Zimmerman, of Kennett, for respondent.

BRADLEY, J.

Plaintiff sued under section 4242, Rev. St. 1919, to recover treble damages for the destruction of certain shade and ornamental trees upon his land. The cause was tried before the court and a jury, and the value of the trees destroyed was fixed by the verdict at $500. On motion this amount was trebled and judgment rendered for $1,500, and defendant appealed.

The petition is sufficient in form for treble damages under the statute. The answer is a general denial. The evidence shows that defendant cut down and destroyed shade and ornamental trees on plaintiff's land. The two assignments of consequence are based upon the character of evidence offered to establish the value of the shade and ornamental trees cut down, and upon the action of the court in sustaining plaintiff's motion to treble the damage as found by the jury. We will dispose of these assignments in the order presented.

Plaintiff was asked this question:

"If you know tell the jury what the difference in value of that land is before the trees were cut and after?"

Objection was made on the ground that under the petition, based on the statute, for treble damages, such character of evidence as called for by the question was incompetent. The objection was sustained, and plaintiff's counsel then offered to prove by plaintiff that the difference between the reasonable market value of the lands described with and without the shade and ornamental trees cut down and destroyed was $1,000, but such offering was excluded. After the exclusion of the offer counsel asked plaintiff this question:

"Now, Mr. Barnes, you may tell the jury, if you know, the reasonable value of the shade and ornamental trees which were cut on your premises by the defendant company?"

In answer plaintiff placed the value at $1,000. Similar evidence was given by two other witnesses offered by plaintiff. Defendant contends that the cross-examination of these witnesses discloses that they based their estimate of value of the shade and ornamental trees upon the difference between the value of the premises with and without said trees, and defendant's contention in this respect is correct. Therefore we have presented this question. In a suit under the statute (section 4242, R. S. 1919), for treble damages for the destruction of shade and ornamental trees, can the value of the trees be established by evidence of the difference in the value of the premises with and without the trees? So far as we are able to ascertain, this question has not been directly ruled in this state.

The statute (section 4242), provides:

"If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person, or shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mold, or any ice or other substance or material being a part of the realty, or any roots, fruits or plants, or cut down or carry away grass, grain, corn, flax or hemp in which he has no interest or right, standing, lying or being on land not his own, or shall knowingly break the glass or any part of it in any building not his own, the person so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed or carried away, with costs."

In a common-law action of trespass for injury to the freehold, the measure of damages is the difference in the value of the land before and after the trespass. Ritchie v. State Board of Agriculture (Mo. App.) 266 S. W. 492, loc. cit. 495; McKinsey v. Guthrie (Mo. App.) 212 S. W. 563; Matthews v. Railroad, 44 S. W. 802, 142 Mo. 645, loc. cit. 665 ; Cox v. Railroad, 85 S. W. 9S9, 111 Mo. App. 394, loc. cit. 406; Bungenstock v. Drainage District, 64 S. W. 149, 163 Mo. 198; Bailey v. Siegel Gas Fixture Co., 54 Mo. App. 50 ; Foncannon v. Kirkville, 88 Mo. App. 279.

Learned counsel for defendant, to support their contention that the measure of damages in an action under the statute is not the difference in value of the premises before the trespass and afterwards, but is the value of the thing removed or destroyed, rely upon the wording of the statute itself, and upon Labeaume v. Woolfolk, 18 Mo. 514 ; Soulard v. City of St. Louis, 36 Mo. 546, loc. cit. 553; Mueller v. Railroad, 31 Mo. 262; Flynt v. Railroad, 38 Mo. App. 94; and Cox v. Railroad, supra.

Labeaume v. Woolfolk was an action under the statute for treble damages. The rule as to the measure of damages is not discussed. The court, however, uses this language:

"The party injured by the trespasses enumerated in the statute is entitled to recover treble the value of the thing (italics ours) injured, broken, destroyed or carried away."

Soulard v. City of St. Louis, supra, was for single damages for the wrongful taking or appropriation of lands for a public street, and was not based on the statute. In discussing the measure of damages there applicable the court used this language:

"In regard to the measure of damages, it has already been prescribed by this court in Mueller v. St. L. & Iron Mountain R. R. Co., 31 Mo. 262, a case involving essentially the same principle. It was there held on the authority of Jones v. Gooding, 8 Mees. & W. 145, that in an action for damages for wrongfully entering upon land and taking and carrying away the soil, etc., the proper measure of damages is not the actual damages sustained, but the value of the land removed [italics ours]; and as the defendant has taken and appropriated to its own use the land used as a street, its fair and reasonable value will afford the criterion in estimating the damages."

The portion, supra, last italicized is a literal copy of the headnote to Mueller v. Railroad, supra. The headnote referred to, without reference to the actual language used in the opinion, might be susceptible of a construction that the opinion would not justify. In the Mueller Case the court, speaking by Judge Napton, said:

"The action is trespass; and as the damages given by the jury, under the rule for estimating them furnished by the court, seem, from the testimony, to have been a full compensation for the injury to the plaintiff's lot occasioned by the construction of the road, it appeared but equitable, either that this judgment should be a final adjustment of the plaintiff's claim or that a different rule of damages from the one given by the court should govern. But the case of Jones v. Gooding, 8 Mes. & Wels. 145, is an authority for the measure of damages declared in the instruction given. That was an action of trespass for cutting a ditch along the edge of plaintiff's close, and carrying `away the soil, etc.; and the court held the measure of damages to be the value of the land taken and not the expense of restoring it to its original condition."

The language used in the conclusion of the quotation, supra, from the Mueller Case clarifies the italicized portion quoted from Soulard v. City of St. Louis, supra. Counsel for defendant in the cause at bar specifically refer to the italicized portion as supporting their contention that the true measure of damages is not the difference in value of the' premises before and after the trespass, but is "the value of the thing so injured, broken, destroyed or carried away," considered separate and apart from the freehold and without regard to the damage done to the freehold. When the language actually used in the Mueller. Case, and not the headnote, is considered in connection with the language used in Soulard v. City of St. Louis, it is plain that the last mentioned case is not an authority supporting defendant's contention.

The ruling in the Mueller Case was based on Jones v. Gooday, not Gooding, 8 Meeson & Welsby (Eng. Ex.) 146, and the ruling in the Soulard Case is based upon the Mueller Case. In Jones v. Gooday the defendant had directed that a ditch be widened, and in the widening of the ditch a strip off the field belonging to the plaintiff was cut and carried away. Plaintiff contended that his damages should be measured by whatever sum it would require to restore the land to the condition in which it was before the commission of the trespass. It was held that the proper measure of damages was the value of The land removed, and not the expense of restoring the field to its condition prior to the trespass. So far as appears both the Mueller Case and the Soulard Case were for single damages. Flynt v. Railroad, supra, as to the damages is based upon the Mueller Case, and the Soulard Case and lays down no different rule than is laid down in the cases upon which it is based.

Cox v. Railroad, supra, was under the statute to recover treble damages for sand alleged to have been wrongfully removed from plaintiffs' land. It was contended by the defendant in the Cox Case that the measure of damages was the difference in the market value of the land before and after the sand was taken. In answering that contention the court said:

"The ordinary rule for measuring the damages to land caused by the digging up and removal of a part of the soil, which is the cost of replacing the soil removed or the difference in the value of the land before and after the removal, cannot be applied to actions brought on the statute for the treble damages."

The general rule is that the measure of damages for trees which are not valuable for timber is the injury to the land caused by destroying them. This rule is based on the...