Lucas v. Morrison
| Decision Date | 11 January 1956 |
| Docket Number | No. 12941,12941 |
| Citation | 286 S.W.2d 190 |
| Parties | Benjamin D. LUCAS, Appellant, v. J. H. MORRISON, Appellee. |
| Court | Texas Court of Appeals |
Rice, Waitz & Rice, San Antonio, for appellant.
Moursund, Ball, Bergstrom & Barrow, San Antonio, for appellee.
This is an appeal from a judgment of the County Court at Law No. 2 of Bexar County, based upon a jury verdict allowing plaintiff, J. H. Morrison, a recovery against defendant, Benjamin D. Lucas, of $50 as the intrinsic value of a hackberry shade tree and a recovery of $100 as nominal damages for wrongful trespass of defendant upon the land of plaintiff. Benjamin D. Lucas has prosecuted this appeal.
Appellant's first four points present the contention that the court erred in permitting a recovery of $50 for the hackberry tree, because the wrong measure of damages was applied, and because there was no evidence to support the finding of the jury to the effect that the intrinsic value of the tree was $50.
We overrule these contentions. It is quite true that trees growing upon land are a part of the realty, unless they have a market value when detached from the land, and ordinarily the measure of damages for the wrongful destruction of such trees is the difference in the value of the land immediately before the trees were destroyed and immediately after their destruction. Hooper v. Smith, Tex.Civ.App., 53 S.W. 65; Galveston, H. & S. A. Ry. Co. v. Warnecke, 43 Tex.Civ.App. 83, 95 S.W. 600; Hidalgo County Water Control & Improvement Dist. No. 1 v. Gannaway, Tex.Civ.App., 13 S.W.2d 204.
It was stipulated in this case that the hackberry tree had no market value when severed from the land. The evidence shows that the market value of the land was the same before and after the destruction of the hackberry tree. So, if this measure of damages be followed, it is apparent that appellee would not receive anything for the wrongful destruction of his valuable shade tree.
Appellee testified that the hackberry tree was the only shade in the enclosure in which he kept his milk cows, that milk cows need shade and fall off in their production when they do not have shade, and that forty cows could stand in the shade of this tree. A picture of the tree before it was cut down is in the statement of facts. H. R. Hohenberger, a witness for appellant, admitted that shade is valuable to dairy cattle to a certain extent. No doubt this one hackberry tree is of small value when compared with the value of the entire tract of land, and of such small value that its destruction...
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