
    (53 Misc. Rep. 523)
    KELLAR v. CENTRAL TELEPHONE & TELEGRAPH CO.
    (Onondaga County Court.
    March, 1907.)
    1. Trespass—Treble Damages—Injury to Trees.
    Code Civ. Proc. §§ 1667, 1668, provides for treble damages if any person cuts any tree or otherwise despoils a tree on the land of another without his leave. Hold, that an action to recover thereunder can be brought only by the owner of the fee.
    2. Same—Actual Damages.
    Where plaintiff sued before a justice to recover treble damages under Code Civ. Proc. §§ 1667, 1668, for injuries to a tree by a telephone company, but was not the owner of the fee, he could recover his actual damages, as defendant was a trespasser, but was not entitled to the treble damages given by the statute.
    Appeal from Justice Court.
    Action by George Kellar against the Central Telephone & Telegraph Company for injuries to a tree in front of plaintiff’s premises, brought before a justice to recover treble damages under Code Civ. Proc. §§ 1667, 1668. Judgment for plaintiff. Defendant appeals.
    Modified and affirmed.
    Goodelle, Nottingham Bros. & Andrews (William H. Harding, of counsel), for appellant.
    Nelson D. Lansing, for respondent.
   ROSS, J.

A judgment was obtained before the justice of the peace for substantial damages, which amount he trebled under the sections above cited, and from such judgment this appeal is taken.

The evidence is not very precise as to whether the tree was upon the land owned by the plaintiff or immediately in front of his premises in the street; but, as I understand, the plaintiff does not claim'upon this appeal that he owned the fee to the street. I believe that only an owner of the fee can invoke the benefits of the sections cited. The language of section 1667, Code Civ. Proc., is:

“If any person cuts down or carries off any wood, underwood, tree, or timber, or girdles or otherwise despoils a tree on the land of another, without the owner’s leave.”

It would seem that the action is based upon the theory of an injury to the land owned by the person injured. The statute is highly penal, and should not be extended by implication. The case of Van Siclen v. Jamacia El. L. Co., 45 App. Div. 1, 61 N. Y. Supp. 210, died by the plaintiff respondent, does not hold .that an abutting owner can recover treble damages. As cited on page 5 of 45 App. Div., page 213 of 61 N. Y. Supp.:

“The proof upon the trial was undisputed that the entry was without consent, and that the cutting was done tor the most part, if not all, within the line of the plaintiffs’ premises.”

Tire plaintiff, however, is entitled to recover the actual damage which he has sustained.

Van Siclen v. Jamaca El. L. Co., 45 App. Div. 1, 61 N. Y. Supp. 210, and Donahue v. Keystone Gas Co., 181 N. Y. 313, 73 N. E. 1108, 70 R. R. A. 761, 106 Am. St. Rep. 549, the cases cited by the defendant. ‘ to sustain the claim that the right of the defendant company in the street was paramount to that of the plaintiff, assume that the act complained of was necessary in order to effect the purpose of the franchise. It only has to be stated that a grant to effect a purpose does not give the right to unnecessarily injure the property of another. In the case under consideration there is no claim that the act complained of was necessary. It may be claimed, under the evidence, that it was accidental, but that is far removed from a necessary .act.

It is claimed by the defendant that there can be no recovery of the actual damages, because there is no evidence, or insufficient evidence, of negligence. The evidence is meager in this regard, as, for instance, whether the defendant employed sufficient men or had suitable apparatus. Negligence is not a necessary element to sustain a recovery. The plaintiff had a property right in the tree injured, and the defendant was a trespasser'—a wrongdoer.

Evidence was given upon the trial of the depreciation of the value of the plaintiff’s premises, and also of the cost of replacing the tree; and evidence was given as to the extent of the injury to the tree, which, upon any theory of the measure of damages, sustains the amount of actual damages awarded by the justice. The judgment may be modified by reducing the recovery to the amount of actual damages found by the justice, and judgment for that amount and the costs in justice court is affirmed, without cost of this appeal to either party. Code Civ. Proc. § 3066, subd. 5.

Judgment modified accordingly, and, as modified, affirmed, without costs of appeal to either party.  