Peaslee v. Koenig, 81-345

• Decision Date: 10 September 1982
• Docket Number: No. 81-345,81-345
• Parties: Earle C. PEASLEE et al. v. Walter L. KOENIG d/b/a New Hampshire Forest Development Assoc.
• Court: New Hampshire Supreme Court

Page 832

453 A.2d 832

122 N.H. 828

Earle C. PEASLEE et al. v. Walter L. KOENIG d/b/a New Hampshire Forest Development Assoc.

No. 81-345.

Supreme Court of New Hampshire.

Sept. 10, 1982.

Schroeder & McLetchie, Ossipee (Robert H. Schroeder, Ossipee, on brief and orally), for plaintiffs.

Branch & Greenhalge, P.A., Concord (Robert D. Branch, Concord, on brief and orally), for defendant.

PER CURIAM.

The plaintiffs, Earle C. Peaslee and Margaretta B. Peaslee, brought this action against the defendant, Walter L. Koenig d/b/a New Hampshire Forest Development Assoc. to quiet title to real property located in Sandwich, New Hampshire and to enjoin the defendant from cutting timber on the property. Additionally, the plaintiffs sought damages for timber that had already been cut. See RSA 539:1 (Supp.1981). A Master (Harold D. Moran, Esq.) recommended that the plaintiffs be awarded damages, and this was approved by the Trial Court (Wyman, J.). The defendant appeals. We affirm.

In 1975, the defendant constructed an access road from his property to the land in dispute and commenced cutting timber on the land. Between December 1979 and February 1980, the defendant cut approximately 404 cords of pulp, together with additional amounts of hemlock and pine. The plaintiffs claim ownership to the disputed land by virtue of a 1961 deed from Fred A. Bickford. The plaintiffs had marked their boundaries and informed the police that the defendant was trespassing. The police chief warned the defendant not to trespass on the land. The defendant claims ownership through a 1952 deed from one Leavitt. The master determined that neither deed conclusively supported either of the parties' claims. After a view of the land and a full hearing, however, the master concluded that the plaintiffs owned the land.

The master awarded damages as provided in RSA 539:1 (Supp.1981) which states that "[w]hoever shall cut ... willfully and unlawfully ... any ... timber ... being on the land of another person ... shall forfeit to the person injured, for every pine or other timber tree so cut ... 5 times the value thereof; and shall be guilty of a misdemeanor."

The defendant argues that the provisions of RSA 539:1 (Supp.1981) presently require proof beyond a reasonable doubt that the defendant committed the unlawful act. We disagree. In 1977, the legislature revised that statute by adding the provision making the offense a misdemeanor. The defendant argues that this revision changed the statute from a civil statute to a criminal one. The legislature did not eliminate the civil penalty, but rather added a criminal penalty. Referring to the revision, Senator Bradley stated: "Under existing laws there is a civil penalty ... for anyone who willfully ... cuts down ... another persons [sic] timber .... [T]his statute is also adding a criminal penalty so that the trespasser could be arrested and held both for the criminal and civil provisions." N.H.S.Jour. 991 (1977). In this case, the defendant was not arrested and tried under the criminal provision of the statute. Rather, the plaintiffs elected to bring their claim under the civil provisions of the law. Therefore, the master did not err in applying the civil burden of proof instead of the criminal burden of proof.

Having concluded that the statutory damages did not fully compensate the plaintiffs for their loss, the master also awarded compensatory damages. The defendant contends that it was error for the master to award compensatory damages in this case. We disagree. In Woodburn v. Chapman, 116 N.H. 503, 363 A.2d 197 (1976), we held that the penalty provided for in RSA 539:1 was intended to protect trees as a marketable resource. We also held that if trees confer other benefits on the plaintiff in the enjoyment of his property, a plaintiff could join a count for compensatory damages with his count to recover the statutory penalty. Id. at 504-05, 363 A.2d at 198. Similarly in Hynes v. Whitehouse, 120 N.H. 417, 415 A.2d 876 (1980), we upheld an award of compensatory damages and noted several elements for which a plaintiff could receive compensatory damages. Id. at 421, 415 A.2d at 878.

Both Hynes and Woodburn indicate that the ordinary measure of compensatory damages is the difference between the value of the land before the harm and the value of the land after the harm. 120 N.H. at 421, 415 A.2d at 878; 116 N.H. at 505, 363 A.2d at 198-99. In Hahn v. Hemenway, 96 N.H. 214, 215-16, 72 A.2d 463, 464 (1950), we held...