Moss v. People's California Hydro-Elec. Corp.

• Decision Date: 18 November 1930
• Citation: 134 Or. 227,293 P. 606
• Parties: MOSS v. PEOPLE'S CALIFORNIA HYDROELECTRIC CORPORATION.
• Court: Oregon Supreme Court

293 P. 606

134 Or. 227

MOSS v. PEOPLE'S CALIFORNIA HYDROELECTRIC CORPORATION.

Supreme Court of Oregon

November 18, 1930

In Banc.

Appeal from Circuit Court, Lake County; Orlando M. Corkins, Judge.

Action by Mary D. Moss against the People's California Hydro-Electric Corporation.Judgment for plaintiff, and the defendant appeals.

Reversed and remanded, with instructions.

This is an action of trespass brought by the owner of some real property in the city of Lakeview upon which there stands six large poplar trees predicated upon the charge that the defendant, an electric power company, in trimming the trees pursuant to the plaintiff's consent, so as to allow clearance for the defendant's electric power wires exceeded the authority conferred, and, by removing unncessarily many branches, depreciated the value of the property.The complaint alleges damages in the amount of $1,000, and prays that their amount be trebled pursuant to 1925 Session Laws, c. 14 (page 24).The jury's verdict was in favor of the plaintiff and assessed her damages as $500; based upon it a judgment was rendered in her favor in the sum of $1,500.The defendant appealed.

O. C Gibbs and T. S. McKinney, both of Lakeview, for appellant.

Arthur D. Hay, of Lakeview, for respondent.

ROSSMAN J.(after stating the facts as above).

The evidence disclosed the following: The plaintiff owns three lots in the city of Lakeview which front on West street standing thereon, immediately adjacent to the street line, are six large poplar trees twenty-five years old some of whose branches extend partially into the street.In the latter part of 1927, when the defendant was about to install several electric power wires along West street, it discovered that the branches and foliage of these trees would interfere with its wires.As a result of a conference between the company's manager and the plaintiff, the latter consented that the defendant could trim the branches so as to clear its wires for a space of four feet.The following day a crew of men in the defendant's employ cut off all of the branches from the side of the trees adjacent to the street for a distance of twenty-five feet above the sidewalk level.The plaintiff contends that this trimming was unnecessarily extensive, that it exceeded the authority which she had conferred, and that it damaged the value of her real property.

Three of the four assignments of error charge that the court misapplied the rules governing the measurement of damages.In order to show that her property had been damaged, and the amount thereof, the plaintiff offered the following evidence: A real estate broker, who testified that he plied his vocation in Lakeview, and that he was familiar with the real estate market in that city, stated that the market value of the plaintiff's property immediately before the trimming of the trees was $5,500.When asked the value of the property immediately after the trimming he replied: "I wouldn't attempt to answer that question," and explained, "there has not been enough property of that class change hands, property of that kind in Lakeview, there hasn't been enough sales to determine the difference in value with or without shade trees, there is no basis to answer that question."The plaintiff testified, over the objections of the defendant, that the value of her property to her immediately before the trimming of the trees was $5,000, and that after the trimming the value to her was $4,000.The evidence also showed that Lakeview is an incorporated city with a population of 2,000, that before the early settlers had located there the land was barren of trees, and that the trees which have been planted since render the adjoining premises desirable.The plaintiff's trees are healthy, are approximately fifty feet tall, give an abundance of shade, and required care when they were young.

The court instructed the jury: "Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual damages for its destruction or injury may be fixed.It is sometimes difficult or impossible, however, to fix a market value, and then it is necessary to resort to other methods of computation of damages.If you should find from the evidence in this case that plaintiff is entitled to damages, but that there was no difference capable of being shown between the market value of plaintiff's property immediately before and immediately after the damage to the trees thereon (if you find such damage to have been committed), then I instruct you that you may take into consideration, in arriving at your verdict, the value to the plaintiff of the property damaged or injured, if any at the time and place of the injury, if any."

The briefs are in accord that the plaintiff granted to the defendant authority to trim the tree branches so as to yield a four-foot clearance for the wires.The defendant does not claim that a greater clearance was necessary, and the plaintiff concedes that four feet were essential.Before beginning this work the defendant obtained a franchise from the city council of Lakeview which authorized it to string these wires in the street upon which the plaintiff's property faced and to erect the necessary poles at places to be selected by the city's engineer.The work was done in compliance with the franchise and the instructions of the latter official.As above stated, the parties are agreed that the plaintiff granted to the defendant the right to trim the trees sufficiently to afford a four-foot clearance for its wires, and that such a clearance was ample; but, even if no express authority had been obtained, the authorities hold that an electrical company which has strung wires pursuant to a legal franchise may trim overhanging branches which interfere with its wires if such removal is reasonably necessary to assure safety and the enjoyment of the privileges conferred by the franchise.Elliott on Roads & Streets(2d Ed.) § 806 and 20 C.J. p. 310, § 11.

Since the defendant had the right to trim the trees sufficiently to provide a clearance for its wires, it is evident that, if it did not cut any more foliage than was necessary to produce that result, it was not liable to the plaintiff, even though the value of her property was adversely affected by the trimming.But if the defendant exceeded the authority conferred by cutting off more branches than was necessary and thereby injured the value of the property, the defendant is liable for the resulting damages.Since the trees are valuable only on account of their ornamental and shade-providing qualities, neither party contends that recovery is limited to the value of the timber in the trees, and both agree that the injury to the freehold measures the recovery.The rule applied in such instances, in the absence of circumstances which render it inapplicable, is that the property owner is entitled to receive an amount of damages equal to the loss or depreciation in the value of the property caused by the wrongful mutilation of the trees; this amount is measured by determining the difference in the value of the land immediately before and immediately after the consummation of the wrongful act.O. & C. R. R. Co. v. Jackson,21 Or. 360, 28 P. 74;Meyer v. Tel. Co.,122 Iowa, 514, 98 N.W. 300;Disbrow v. Westchester Hardwood Co.,164 N.Y. 415, 58 N.E. 519;Sutherland on Damages(4th Ed.) § 1019 and 17 C.J.Damages§ 191, p. 891.When the market is active and the property appeals to prospective buyers, the market price is readily ascertainable.In such instances market price reveals real value, and real value is the true basis of compensation.Sedgwick on Damages(9th Ed.) § 243.The law of damages regards market value as the best evidence of real value.Ordinarily, when an owner receives the market price of the destroyed property, he is able to restore himself readily to as good a position as if the tort had not been committed.However, a property may be so peculiarly located (see, for instance, St. L., V. & T. H. R. R. Co. v. Haller,82 Ill. 208) or of such a peculiar type ( Jonas v. Noel,98 Tenn. 440, 39 S.W. 724, 36 L. R. A. 862), that the market has not become interested in it and therefore has not placed any value upon it.The general rule previously stated by us presupposes a market for the property.If there is in fact none, resort to market value cannot be had, and the value of the property must be ascertained from other evidence.The evidence admissible under such circumstances varies with the nature of the property and its surrounding circumstances.

We find it difficult to believe that in the city of Lakeview a residential lot improved with a dwelling house possesses no established market value.However, we notice that the judge of the circuit court, who presided over the trial and who resides in Lakeview, permitted the plaintiff to resort to secondary evidence of value upon the assumption that the property possessed no market value.Before the secondary evidence was received, neither the circuit court judge nor counsel for the defendant interrogated the two witnesses who testified to value.In fact the slight evidence of absence of market value which the plaintiff offered was not challenged by the defendant either by cross-examination or by contradictory evidence.Apparently the circuit court judge understood the real estate broker's reply to the inquiry concerning the value of the property after the defendant had trimmed the trees to mean that sales of property of the kind owned by the plaintiff had been so few that he was unable to state its value and preferred to withdraw the estimate which he had already made.The defendant's brief argues that, where evidence of market value is absent, a plaintiff can recover...