Werner v. Flies

• Decision Date: 18 May 1894
• Citation: 59 N.W. 18,91 Iowa 146
• Parties: WERNER v. FLIES.
• Court: Iowa Supreme Court

91 Iowa 146

59 N.W. 18

WERNER

v.FLIES.

Supreme Court of Iowa.

May 18, 1894.

Appeal from district court, Carroll county; Charles D. Goldsmith, Judge.

Action at law to recover three times the value of certain alleged shade and ornamental trees, which the plaintiff claims were willfully cut down by the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals. Reversed.W. R. Lee, for appellant.

M. W. Beach and J. M. Drees, for appellee.

ROTHROCK, J.

The plaintiff was the owner of a farm which has an open and public highway on the north line thereof. The road, as laid out, was intended to be located one-half on the land of the plaintiff and the other half on the land of the adjoining owner of land. It is conceded by the parties that the road, as traveled, was not on the line. The plaintiff had set out a hedge or row of trees, and at one time stretched wire on the trees, which served the purpose of a fence. There was not room for public travel between the row of trees and the fence of the adjoining owner, except for a short distance. In the year 1889 the plaintiff ceased to use it for the purpose of a fence, and erected a fence further south. It is proper to say that the hedge or row of trees was not in a straight line, so that it was not parallel with the lines of the land. The defendant was supervisor of the road district in which the plaintiff's farm is situated. In the spring of 1890 he caused the hedge and trees to be cut down, because they were an obstruction to public travel, as he claimed. The plaintiff bases his action upon section 4571, McClain's Code, which is as follows: “For willful trespass in injuring any timber, tree or shrub on the land of another, or in the street or highway in front of another's cultivated ground, yard or town lot, or on the public grounds of any town, or any land held by this state for any purpose whatever, the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property aforesaid.” After the trees were cut down, a survey of the road was made, by which it appears that some of the trees which were cut down were on the plaintiff's land, and south of where the travel had been before that time. It is not our purpose to set out the pleadings further than to say that the defendant answered the petition by the claim that the trees and hedge were of no value,--were not ornamental or shade trees; that before defendant did the acts complained of most of the trees and old fence row had been cut down and carried away by others, and that what remained were an obstruction to travel and were rightly cut down; that when plaintiff erected a fence south of the trees and hedge, in 1889, he dedicated the land north of the fence to the public for a highway; and that he requested the plaintiff to...