Eldridge v. Gorman

• Decision Date: 20 April 1905
• Court: Connecticut Supreme Court
• Parties: ELDRIDGE et al. v. GORMAN.

60 A. 643

77 Conn. 699

ELDRIDGE et al.

v. GORMAN.

Supreme Court of Errors of Connecticut.

April 20, 1905.

Appeal from Court of Common Pleas, Hartford County; E. Peek, Judge.

Action by Carrie E. Eldridge and others against Patrick Gorman to recover for the wrongful cutting of trees on land of plaintiffs and for injunction. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Joseph L. Barbour and Harry M. Burke, for appellant. Herbert O. Bowers, for appellees.

HALL, J. The complaint, dated April 6, 1901, as amended, alleges that on October 1, 1898, the plaintiffs were the owners of a described tract of land in the town of Manchester, containing 60 acres, more or less, upon which were growing a large amount of pine, chestnut, and oak trees, a portion of which pine trees were on said day sold to the defendant, with authority to enter upon said land and cut and remove them; that on said day, and on divers days since, the defendant, without authority, entered upon said land and cut down 400 of said chestnut and oak trees, and carried a part of them away.

The following is the language of paragraph 4:

"A number of large and valuable oak trees still remain standing on said land, which the defendant threatens to cut and remove from said land. Said land has recently been laid out and opened for building lots, and said oak trees are of great value as shade trees, and, if removed, would cause irreparable damage to the plaintiffs."

It is alleged that the plaintiffs have already been damaged to the extent of $800, and an injunction and $1,000 damages are demanded.

In the fall of 1898 and thereafter the defendant, under the claim that he had bought from the plaintiffs all the wood then standing upon said tract, entered thereon and cut nearly all the pine trees, and also more than 200 oak trees above seven inches in diameter, and more than 100 chestnut trees above seven inches in diameter. The land from which said trees were cut was rough and unimproved land, but was laid out for building purposes in 1902. Upon the trial the court admitted evidence of the value of said oak and chestnut trees as timber, and of the damage to the land for building purposes by the removal of the trees, and found the damage done to the land by the cutting of the trees to be $300, and overruled the defendant's claim that under the allegations of the complaint the value of the oak and chestnut trees as shade trees upon building lots could not be considered as an element of damage, but only their value as timber, and rendered Judgment for said sum.

This is an action for a trespass to the land to which the trees in question were appurtenant. It is an appropriate remedy either for the recovery of damages for the mere unlawful entry upon the plaintiffs' land, for the recovery of the value of the trees removed, considered separately from the land, or of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land, nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of. Hoyt v. Southern New England Telephone Co., 60 Conn. 385-390, 22 Atl. 957. Manifestly the judgment of the trial court was not based upon the value of the trees as timber, but was for "the damage done to the land." It was for the damages resulting from the reduced pecuniary value of the land for building purposes caused by the special value of the trees as shade or ornamental trees while standing upon this land. Such injury was undoubtedly a legitimate element of damage if properly alleged in the complaint. All damage of which the injurious act was the efficient cause, and for which a recovery could be had in any form of action, could be recovered in such action of trespass. Barnum v. Vandusen, 16 Conn. 200-204. But if the damages upon which the judgment is thus based are special, they should have been particularly specified in the complaint; and whether we regard the averment of the cutting down and carrying away of the 400 trees as a statement of the real cause of action, as it seems to he, or as a circumstance characterizing the trespass, and merely a matter of aggravation, there seems to be no good reason why this case should be an exception to the settled rule in this state requiring the plaintiff to distinctly aver in his complaint any special damage which he seeks to recover. In Bristol Mfg. Co. v. Gridley, 28 Conn. 201, 212, this court said: "But if certain injuries and losses do not necessarily result from the defendant's wrongful act, but in fact follow it as a natural and proximate consequence, they are called special, and must be alleged." In Tomlinson v. Derby, 43...