Chase v. Hoosac Tunnel & W. R. Co.

• Decision Date: 09 October 1911
• Court: Vermont Supreme Court
• Parties: CHASE v. HOOSAC TUNNEL & W. R. CO.

81 A. 236

85 Vt. 60

CHASE

v. HOOSAC TUNNEL & W. R. CO.

Supreme Court of Vermont. Windham.

Oct. 9, 1911.

Exceptions from Windham County Court; William H. Taylor, Judge.

Action by Charles S. Chase against the Hoosac Tunnel & Wilmington Railroad Company. Judgment and verdict for plaintiff, and defendant excepts. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

W. R. Daley and E. W. Gibson, for plaintiff.

Haskins & Schwenk, for defendant.

POWERS, J. This is an action on the case to recover damages alleged to have been sustained by reason of a fire negligently communicated to the plaintiff's land by the defendant's locomotive engine. It appeared that the fire in question burned over a large area of the plaintiff's woodland; that the timber on this land had been cut and removed, and that at the time of the fire it was largely covered with a second growth of beech, birch, and maple, with some ash, spruce, and hemlock, ranging in size from twenty inches down to two inches in diameter; that the ground was exceedingly dry, and that in many places the soil was burned to such a depth that its fertility for growing trees was destroyed. Witnesses on both sides testified without objection as to the number of cords of wood and feet of lumber destroyed and injured by the fire, and the value thereof at that time, and gave their estimates of the damage to the soil through which the fire ran. Certain of the witnesses were then allowed, subject to exception, to testify, in effect, that in their opinions the trees destroyed, especially the hardwood, were worth more to stand and grow, than to cut into firewood; and some were allowed to say how much more the land was worth as "sprout" land, than for the wood upon it. The defendant objected that this line of evidence did not relate to a proper element of damage, because the answers were necessarily too speculative and uncertain to be reliable or legitimate. The defendant then insisted, as it does here, that the true rule governing the damages is "the actual damage to the wood and timber trees standing and growing upon the burned premises at the time of the fire, together with such damage to the soil, if any, by reason of the fire, as was shown by the evidence in the case, less the amount the plaintiff realized, or might have realized, from the wood and timber, by the exercise of the care of a prudent man in seasonably cutting, marketing, and properly caring for the same; and that the measure of damages as to the wood and timber actually destroyed was its value as wood and timber [its stumpage, as it is commonly called] upon the day of the fire."

Ordinarily, damages are judicially awarded on the theory of compensation. The law seeks to make the injured party whole; to restore him, so far as can be done by an award of damages, to his former position. The rule contended for by the defendant would accomplish this result in many cases, but not in all. Where the property wrongfully destroyed is capable of...