Mary M. Ferguson, Respondent, v. Henry W. Buckell, Appellant

Mary M. Ferguson, Respondent, v. Henry W. Buckell, Appellant. Measure of damages — where merchantable trees are wrongfully cut near a public highway it ordinarity is their value—-where the land has avalué fot: use as a summer home the rule is different—competency to testify as an expert in the latter In an action brought by an owner of forest land to recover damages caused thereto by the cutting of merchantabkttimber thereon, the measure, of dam- ' ages is ordinarily the market value of The value of such forest land for Usé as a summer home may, by the cutting of shade trees along a public highway affording access thereto, be impaired beyond the market value of the timber cut. " Until, however, the existence of a market value for summerhomes.in the vicinity is shown, evidence of injury through the destruction of shade trees is at least, of doubtful competency. A person, whose knowledge of the value of land'in the vicinity is confined to the premises in question and one other parcel; is ndt qualified to testify as an expert to the difference in the value of the land in question with and without the shade. ■. '- Appeal by the defendant-,-Henry W. Buckell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 9th day of June, 1904, upon the report of a referee. The'plaintiff is-the owner of 160 acres of land-up,on the shore of Lake George." Through this land runs a ■ highway which divides the farm about evenly. Upon the west of, the.highway about fifteen acres of land is cleared, running down to the lake front upon which were three houses. Upon the east of the highway were eighty acres entirely covered with timber. The claim of the plaintiff is that the defendant wrongfully cut timber upon this lot east of the highway, and so near the roadway as to take away the shade from the roadway, thereby diminishing the value of her premises. T-liis claim the referee has sustained and has found that the plaintiff’s premises have been injured to the amount.of $200, which sum has been trebled under authority, of section 1668 of the Code of Civil Procedure, giving the plaintiff a. judgment for$600 damages besides ■costs. From this judgment, tinder the report, of the referee, the defendant has appealed..- William Sears, for the appellant. J. Sanford Potter, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: The only witness sworn by the plaintiff as to- damage was the husband of the plaintiff. Upon an objection as" to his competency to give evidence- upon that subject, he was allowed to swear that, the value of the premises liad been Tvninished in the amount of $2,500; In swearing to his qualification!*'; testify to value he says: “ I have been acquainted with the value of real estate * * * only since I went there and bought this property. My acquaintance began when I commenced negotiations for this property. I am acquainted with the value of real estate in that vicinity. The holding price of Knowlton’s property is $10,000.. I cannot say that I know the value of similar property in that vicinity along the lake shore beyond Ifnowlton’s property and mine. Q. State what, in your opinion, the market value of your property was with these trees in there as they were in 1901, and also without the trees as it was in 1902 \ [Objected to as incompetent, the witness not qualified, not shown that he knows the values, and as speculative. Overruled. Exception.] A. With the trees as it was, I should say it was worth $10,000, and without the trees not over .$7,500.” The objection taken to the evidence of value given by plaintiff’s husband should have been sustained. There is nothing in the evidence to show that this place has a market value as a summer residence. Ordinarily, the measure of damage to forest land by the cutting of merchantable timber is the market value of the timber cut. Where there is a market for summer homes the market value of such a home may bé impaired beyond the' market value of the timber cut by the impairment of a shaded approach through the cutting of shade trees. Until such ■a market is shown, evidence of injury through destruction of shade along a public road is at least' of doubtful competency. If such ■evidence be competent, the plaintiff was not shown competent to give it. His only qualification was the knowledge of the value of his wife’s place and one other. This knowledge comes far short of qualifying him to swear to the difference in the value of her place with and without the shade. This evidence has been largely disregarded by the referee, who found the damage at $200 instead of $2,500, as sworn to by the witness. But this is the only evidence upon which that finding can rest. Under any other evidence of damage the referee could' not have found more than $15 damage. The evidence, if competent, in my judgment, offers frail support for the finding. It is quite clear that not all of the trees that were taken within 500 feet of the roadway, and which are claimed to have been unlawfully taken, were taken by the defendant’s servants. J. W. Holcomb was the caretaker of the plaintiff as well as the servant of the defendant, and while the referee may have fóund as against Ms evidence that what'-cutting lie did of trees'neAr-the liighr . ■way xyas without plaintiff’s authority, nevertheless, :a considerable part of the wood was cut by Holcomb and sold for firewood,- for which he accounted to plaintiff. For thatthe defendant could not be held'liable. . • " • The judgment must,' therefore, on the law and the facts be reversed-and a new trial.granted, with costs to ap.pe'llimt to abide ■ the event. . ( , All concurred.; Parker, P. J., and Chase, J.s in' result. Judgment reversed on law and facts and new trial granted, with costs-to-appellant to abide event. -