Reed v. Cent. Maine Power Co.

• Decision Date: 19 May 1934
• Citation: 172 A. 823
• Parties: REED et al. v. CENTRAL MAINE POWER CO.
• Court: Maine Supreme Court

172 A. 823

REED et al.

v. CENTRAL MAINE POWER CO.

Supreme Judicial Court of Maine.

May 19, 1934.

On Motion and Exceptions from Superior Court, Sagadahoc County.

Action by Josiah W. Reed and others against Central Maine Power Company. To review an adverse decision, defendant brings case forward on general motion and exceptions.

Motion overruled. Exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and HUDSON, JJ.

Goodspeed & Pitzpatrick, of Gardiner, for plaintiffs.

McLean, Fogg & Southard and Nathaniel W. Wilson, all of Augusta, for defendant.

DUNN, Justice.

This action is based on Revised Statutes, c. 109, §§ 9 and 11.

The plaintiffs are owners of land in the town of Woolwich, bounded in part by a highway. The defendant corporation, a utility discharging a public service in owning and operating a plant, the product of which it distributes to customers for electric lighting, set poles and fixtures for the support of electrical wires upon, along, and over such highway, in front of the house on the abutting premises. At that time (December, 1931), the house was untenanted. There is testimony that it had been occupied during summer seasons in recent years.

Plaintiffs claim damages, in different counts in the declaration, against defendant as a trespasser, for entering their close without license or authority, well beyond the exterior line of the street location, and (1) severing from ornamental trees in the dooryard, to wit, from two hickories and an elm, certain branches and limbs; (2) for cutting down twenty-nine pine and oak trees, growing within the close, but outside the dooryard.

The acts are alleged to have been committed willfully and knowingly.

Defendant pleaded the general issue, and, by brief statement, set up in justification a permit granted it by the selectmen of the town, to construct and maintain the line of posts and wires. R. S. c. 68, § 28 and § 28A as added by Laws of 1931, c. 205.

The jury found specially, in answer to questions by the trial judge, facts which brought the action within the statute. R. S. (ch. 109), supra. Thereupon, conformably to instruction, the jury determined, in the instance of each trespass, "actual damages." For damage to ornamental trees, the award was $496; for the other trees, $25.

On ruling the applicability of the statutory provisions, on the authority of which the respective counts had been drawn, the judge trebled damages under the first count, and doubled the award under the second, thus entitling the plaintiffs to $1,538. Such procedure is not without precedent. Quimby v. Carter, 20 Me. 218; Black v. Mace, 66 Me. 49.

The defense brings the case forward on general motion and exceptions. But one ground of the motion, namely, that the damages are excessive, was argued at the bar. The inclusion of the brief goes no further. Asserted grounds for a new trial which are not argued, must be treated as abandoned.

The decision of the controversy on the merits is plainly right.

The permit, to advert to it anew, was confined to road limits. Even if the selectmen had authority to grant the right to enter on plaintiffs' land, they had not done so; their permit only gave right on the highway, and did not essay, inferentially or otherwise, any interference with adjoining estates, nor attempt to abrogate any general rule of law. A permission given, as was this, by the law, may be lost by abusing it. Cooley on Torts, Vol. 2, § 252, citing Six Carpenters' Case, 8 Co. 290; Id., 1 Smith, L. C, 216.

For private wrongs or injuries, as those done the plaintiffs, legislative purpose is that there be full damages, in contradistinction to the recompense ordinarily recoverable in trespass quare clausum. The statute has been held remedial and not penal. Black v. Mace, supra.

The jury were allowed, as a part of the trial, to view the premises. They saw such physical objects as were properly pointed out to them, and so got a mental picture of the locus. In a land damage case, a view constitutes a special kind of evidence. Shepherd v. Camden, 82 Me. 535, 20 A. 91. See, too, Wakefield v. Boston & Maine Railroad, 63 Me. 385; and, incidentally, State v. Slorah, 118 Me. 203, 214, 106 A. 768, 4 A. L. R. 1256.

Actual damages are sustained by record evidence. Consideration by the jurors of the result of their observations at the view may have tended to strengthen evidential support. Shepherd v. Camden, supra. Independent of this, the damages are not, in a legal sense, too great.

Of the ten exceptions, one concerning an instruction as to damages is strongly advanced as uncovering reversible error.

The judge, at one point in his charge to the jury, instructed: "And on the other hand if you in your good judgment agree with one opinion expressed here or from experience know that this property, although worn out perhaps as a farm, * * * still has a real marketable value for a summer home, and that that value has been distinctly lessened by reason of such loss as has been sustained of shade and ornamental trees by the cutting or mutilation as it is claimed of the various trees, and that that has made a distinct difference, then you will decide, and you have a right to decide, the difference for any purpose which that property might in reason and with reasonableness be appropriated."

The next following instruction was: "You have heard the testimony upon that point. You have heard the testimony of some man, experienced, who says it is available. You have heard the testimony of another man on the other side who perhaps has questioned that and who has said * * * it will sell for just as much today as it would before the cutting was done, and that taking into account its value or its feasibility for sale as a summer home. That is left for you to determine."

Before the instruction of which defendant complains, the judge, in instructing as to the essential law of the case, had defined: "And you have seen the premises and you have heard all the testimony, and you are men of good judgment, and it is for you to say under the evidence here, if you find that there was damage unlawfully caused, what was the difference in the fair market price of that property before and after the cutting."

It would seem, from the bill of exceptions, that the understanding of counse...