
    Livingston Disbrow, Respondent, v. The Westchester Hardwood Company, Appellant.
    
      Trespass—cutting standing timber of a less size than the timber sold — measure of- ■" damages. . .-
    . A.lumber, company, which has purchased all the standing wood measuring more, than-six inches in diameter upon certain premises,-becomes a trespasser if-it-cuts trees other than those having a diameter of more "than six inches, and such - x -trees, in addition, as may’-be necessary to enable it to cut the timber thus .- specified in the contract of sale. " - . "
    The damage of a landowner thus aggrieved is the difference between the value . of the land with the timber upon it and its value after such timber is cut, and ■is" not confined to the mere value of the young -timber after it has. been severed from the soil.
    
      Appeal by the defendant, The Westchester Hardwood Company, from a judgment of the Supreme Court in favor of the. plain tiff, entered in the office of the clerk of the county of Westchester on the 27th day of April, 1896, upon the .decision of the court -rendered after a trial at the Westchester Special Term; also from an order granting an injunction in favor of the plaintiff, and also from an order granted on the 2d day of February, 1895, continuing said injunction.
    The action was brought to recover damages to realty occasioned by the alleged unlawful felling of trees on the plaintiff’s farm, and for an injunction restraining the defendant from committing further trespass.
    
      T. Clement Campbell, for the appellant.
    
      Wilson Brown, Jr., for the respondent.
   Goodrich, P. J.:

On January 9,' 1895, the plaintiff, who was the owner of two adjoining farms at Hew Rochelle, one known as the Underhill farm, consisting of eighty-nine acres, and the other known as the Homestead tract or farm, consisting of sixty-six and one-half acres, entered into a written agreement with the defendant, whereby he sold to '.it all the standing wood on the farms measuring more than six inches .in' diameter at the stumps, said wood being located as follows: Wood in wood lot on Underhill farm line, H. S. corner,, adjoining cross road leading from Horth St. to Friends’ Meeting House;” “ Wood in wood lot on Homestead of L. Disbrow; ” the consideration being §700 for the first-named parcel, and §300 for the second • named parcel. The agreement also gave to the defendant the right to put up mills and shanties necessary for cutting and sawing the trees, the same to remain until April 1,1896, and to be removed thereafter on thirty days’ notice. Out wood and lumber to remain thereafter, if it should be necessary for the company to leave it there, on spots which were not needed for laying out streets. A certain road right was also given from the wood lot of the Homestead to the wood lot of the Underhill farm, according to the season when the wood was hauled. The defendant began the work of cutting, and continued the sanie up to September or October, 1895; but the plaintiff claimed that in doing the work the defendant cut the standing wood on other lots than the two specified in the agreement, and also cut many trees which were, less than six inches in diameter, and, in fact, entirely denuded the two farms of wood, thus doing damage to them far greater in amount than can be measured by the mere value of the cut timber. Apart of the wood was removed, and a part corded for removal .'and remained on the premises at the time of the commencement of this action, which was in October1, 1895. The complaint prays for judgment -enjoining the defendant from felling any standing trees less than six inches in diameter, and from cutting trees upon any part of the premises other than the two lots' referred to in the contract, and from removing any wood, trees, timber or logs which have been so cut and felled.

• The action was tried before Justice Dykmah", when a large amount of testimony was taken, and a judgment was entered as prayed for in the complaint, for the damages resulting from the decreased value of the entire two farms, which was. fixed at $2,500, and' for the value of the trees felled on parts of the property which the plaintiff claims were not included in. the agreement, which was fixed at $221, and for a permanent injunction.

Two very serious questions of fact were litigated - at the trial. The first related to what wood was intended to .be included in the -contract and what was its’location; and the second, as to the size of the trees felled. A diagram, which was used when the contract was entered into, and upon which are outlined what are called the “Wood Lot on Underhill Farm” and the “Wood Lot -on'Homestead of L. Disbrow,” was annexed to the complaint and put in evidence. There is also another lot, marked on the diagram “ Pasture and Small Wood Lot not sold,” "which lies between the two former lots. There-is evidence tending to show that the defendant not only cut the trees upon the wood lot on the Underhill farm and the wood lot on the Homestead farm, but also on the pasture and small wood lot not sold, and on other property lying to the westward of the Underhill wood lot, and that the land thus cut over contained all the woods on the entire two farms, leaving them stripped of all timber. There was evidence on the part of the defendant tending to show that the parties intended to include in the agreement all the. wood on all the lots upon which timber was cut.

The learned court, however, found that the only wood included in the agreement was that upon the Underhill lot and the Homestead lot. There was controversy in respect of a saw-tooth shaped lot on the east side of the Underhill lot, but the learned court found in favor of the defendant in respect to this, and decided that it was intended to be included in the Underhill lot. The court also found that the defendant not only felled the standing wood' over six inches in diameter and such smaller trees as it was necéssary to cut because they stood in the way of the trees over six inches in diameter, but also a large number of trees less than six inches in diameter, and, indeed, all the trees that were of any value upon the said farms, except a small fringe of trees standing in the'Homestead lot, and excepting the'twenty-five locust trees referred to in the contract, and it enumerated specifically the number" cut of each class.

Upon this finding of facts, as made by the court, neither the liability of the defendant nor the measure of damages is doubtful, for, while the defendant was authorized to enter upon the farms and cut wood, its right was limited to cutting trees in accordance with the agreement and not otherwise. For any cutting of trees other than those described in the contract and such other, trees as might be necessary to enable it to cut its own timber it was a trespasser.

The Supreme Court at General Term, in Van Deusen v. Young (29 Barb. 9), had under consideration a contract for the sale of ■ lands, under which the purchaser entered into possession and cut timber. The contract of sale was never consummated, and the court remitted the parties to their original rights for the injuries done to the inheritance by the purchaser, and held that the' action was for trespass.

'In the case of Dwight v. The E., C. & N. R. R. Co. (132 N. Y. 199) the court held that where the value of the trees detached from the soil would not adequately compensate the owner for the wrong done, a recovery is permitted embracing all the injury resulting to the land, Judge Pabker saying: “ This is the rule where growing timber is cut or destroyed. Because not yet fully developed the owner of the freehold is deprived of the advantage which would accrue to him could the trees remain until fully matured. His damage, therefore, necessarily extends beyond the market value of the trees after separation from the soil, and the difference between the value of - the ..land before and after, the injury constitutes the compensation to which he is entitled,” citing in support of his views from the case of Wallace v. Goodall (18 N . H. 439) the following: “.‘The value of young timber, like the value of growing crops, may -be but little when separated froni the soil. The land stripped of its trees may be' valueless. The. .trees considered as timber may from their youth be valueless, and so the injury done to the plaintiff by the trespass would be but imperfectly compensated unless he could receive a sum. that would be equal to their value to him while standingupon the soil.”’ Judge Parker continues: “ It is apparent from the authorities already cited, as well as those following, that in cases of ,injury to real estate the courts recognize two elements of damage. 1. The value of the tree or other thing' taken, after separation from the freehold, if it have any. 2. -The damage to the realty, if any, occasioned by the removal.”

A similar result was arrived at in the. case of Argotsinger v. Vines et al. (82 N. Y. 308), where the court held- that the proper rule for damages for cutting and removing of timber was the difference between the value of the farm with. the timber and its value after such timber, was cut,, and that this, differen.ce furnished a proper measure of damages.

In. the case at bar there was evidence showing that the value of the farms after cutting the timber which was actually sold to the defendant would be about' $91,000, and the value of ■ them after the trees had. been cut in the manner in which' it was done by the defendant was about $86,000, a difference of $5,000, whereas the amount awarded was only ■ $2,500., The . damages awarded for this part of the-injury were, therefore,-much less than the amount which might have been given upon the1 testimony referred to.

Photographs were used at. the trial and upon-the argument in this court which- showed such a wanton cutting and stripping of the ' timber upon the farms as would have justified- a much larger amount óf damages than that which was granted by the court.

The defendant -contends that the plaintiff was not entitled to injunctive relief on the ground that the ■ defendant had concluded its ■ work and-was not cutting timber at the time the. temporary ' injunction' was granted) or tlie final judgment entered, and has .not since that time; and that, an injunction - by' judgment should not be granted to restrain the removal of the corded wood left upon the farms, on the ground that an action at. law can be maintained for the pecuniary damages resulting from the defendant’s acts.

Note.—The rest of the cases of this term will be found in the next volume, 18 App. Div.— [Rep.

We do not agree with this contention, as the plaintiff has a clear right to restrain further unlawful' cutting by the defendant, or to prevent its rémoval of wood which, being not six inches in diameter, it never had the right to cut, and to which it never acquired any right or title.

We have carefully examined the exceptions in the case, and they are practically decided to be untenable by the views already expressed.

The judgment must be affirmed, with costs.

All- concurred. -

Judgment affirmed, with costs.  