Doran v. Rugg

• Decision Date: 10 February 1960
• Docket Number: No. 110859,110859
• Citation: 164 A.2d 859,22 Conn.Supp. 189
• Court: Connecticut Superior Court
• Parties: Edward J. DORAN et al. v. Gladys J. RUGG et al.

Page 859

164 A.2d 859

22 Conn.Supp. 189

Edward J. DORAN et al. v. Gladys J. RUGG et al.

No. 110859.

Superior Court of Connecticut, Hartford County.

Feb. 10, 1960.

Richard T. Scully, Hartford, for plaintiffs.

Ress & Fink, Hartford, for defendants.

HOUSE, Judge.

This action is for damages pursuant to the provisions of § 52-560 of the General Statutes. This section provides that any person who cuts trees standing on the land of another without license of the owner, and any person who aids therein, shall pay to the party injured thereby $1 for each tree under one foot in diameter, 'and for each tree of a diameter of one foot or more three times its value; but, when the court is satisfied that the defendant was guilty through mistake and believed that the timber was growing on his own land, it shall render judgment for no more than its true value.'

The plaintiffs and the named defendant were adjoining owners of real estate along whose common bound ran a line of tall white pine trees planted years ago to border a private driveway. The defendant wished to subdivide her premises, converting the driveway to a publicly accepted highway. This required the establishment of a fixed, closed boundary between these parties. The defendant employed the services of an engineer to establish such a line, but finding that the records called for a line along the north line of the pine trees and that such a line would be too irregular to serve as a suitable highway bound, he suggested a boundary agreement between the parties establishing a line in a straighter course. After some negotiation, surveying and conferences, such a line was established and confirmed in a boundary line agreement between the plaintiffs and the named defendant, the executed agreement defining the common bound in detail being then recorded.

Thereafter, the named defendant engaged the services of the defendant Holcomb to cut trees along the proposed new street and expressly directed him to cut the row of pine trees which ran generally along the boundary line of the parties, except those trees along the boundary adjacent to the plaintiffs' home. She testified that notwithstanding all the efforts expended in drafting and executing a new boundary line agreement and thus establishing a new and exact line, she assumed from her original deed that the trees were on her property and therefore directed the defendant Holcomb to cut all of these trees. He cut them down in accordance with her directions.

The situation is complicated by a disagreement in maps and surveys, and between experts as to the effect on the ownership of the trees of the exact line provided in the new boundary agreement, and on the question of the true value of the trees. According to the plaintiffs' evidence, there were twenty-two trees cut, of which seven were entirely on the land of the plaintiffs and five more were on the boundary line. Also, according to the testimony of the expert called by the plaintiffs, the trees each had a value of $1,000. According to the evidence produced by the defendants, there were twenty-six trees cut, of which four were entirely on the land of the plaintiffs, eleven were entirely on the property of the defendant Rugg, and eleven straddled the boundary line in varying degrees. According to one expert who testified in behalf of the defendants, the trees had a value of $50 each. Another expert who, by coincidence, formerly owned the plaintiffs' premises, placed the value at $225 each for the trees that were cut.

From the conflict of evidence and opinion, it is concluded that the correct line and figure are as testified to by the defendants' engineer and that of the trees cut, four were entirely on the land of the plaintiffs and eleven grew directly on the boundary line. It is also concluded that the trees had a true value at the time of the cutting of $225 each. It is also found that the first cut tree westerly of the college highway was dead at the time it was cut down, and at the time of the cutting had no value.

The law regarding ownership of a tree whose trunk lies partly upon the lands of different owners was well established in this jurisdiction in the leading case of Robinson v. Clapp, 65 Conn. 365, 32 A. 939, 942, 29 L.R.A. 582. The conclusion is set out in 65 Conn. on page 379, 32 A. on page 942 as follows: 'It would really seem to come to this: that each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal, in the first instance, to, or perhaps rather identical with, the part which is upon his land; and, in the next place, embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.' Taking the line and measurements of the trees as shown on exhibit 4 and the computation therefrom as to the portion of each cut tree which was standing partly on the land of the plaintiffs, the parties have stipulated on the basis of the court's finding of $225 as the value for each whole tree that the total value of the four trees which stood entirely on the land of the plaintiffs and of the percentages of the other trees which stood in part on the plaintiffs' land (excluding the tree found to be dead when cut), is $2174.25. It is concluded, therefore, that the true value of the plaintiffs' interests in the trees which were destroyed was $2174.25.

Under the statute (§ 52-560), the plaintiffs are entitled to damages of three times the value of each tree cut when the tree is one foot in diameter or more, as was each of these trees. The statute, however, contains a further provision that when the court is satisfied that the defendant was guilty 'through mistake and believed that the timber was growing on his own land,' it shall render judgment for no more than the true value. The burden of proof as to mistake is upon the defendants. Petroman v. Anderson, 105 Conn. 366, 368, 135 A. 391.

The present action is in two counts and against two defendants. The first count is directed against Miss Rugg, the owner of the premises adjoining the plaintiffs. It is undisputed that it was Miss Rugg who directed Holcomb to cut these trees, was on the scene each day to check the work being done and retained the usable lumber from the trees. The principle embodied in the maxim 'Qui facit per alium facit per se' applies, and the defendant Rugg is liable under the statute for trees cut in fact by her authorized agents or employees. 'The provision in the statute making liable not only the person who cuts, destroys or carries away trees but also 'any person who shall aid therein' merely gives statutory recognition to the principle that all who actively participate in any manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet its...