
    Wyckoff Van Siclen and John R. Van Siclen, Respondents, v. The Jamaica Electric Light Company, Appellant.
    
      Franchise given by a town to erect poles and wires for lighting highways by electricity — duty not to mutilate trees of abutting owners — acts of servants within the scope of their authority — treble damages—pleading—charge that the jury must find whether the injury was “ casual or involuntary.”
    
    A town may, in a proper case, grant a franchise authorizing a corporation to erect poles in its highways and string wires thereon for the purpose of conveying electricity with which to light the highways and other places.
    In stringing its wires the corporation has no right to cut branches of trees belonging to abutting owners, unless such course is demanded by an existing necessity which cannot he .avoided by insulating the wires or by employing other practical means which may he more expensive and less convenient.
    Acts of the servants of the corporation in- cutting branches from trees, pursuant to general directions given by the managing agent of the corporation to cut such branches as are necessary to prevent contact with the wires, are within the scope of their authority and are chargeable to the corporation.
    In an action by an abutting owner, whose trees have been mutilated in stringing the wires, to recover treble damages for the trespass, under section 1668 of the Code of Civil Procedure (authorizing the recovery of treble damages in such a case unless the jury find affirmatively that the injury was “ casual and involuntary ”), the corporation is not entitled to have the jury charged that they should find “whether or not the injury, if any committed, was casual or involuntary,” where no claim was made in the answer or proof was given upon the trial that the injury was casual or involuntary or was committed by mistake.
    
      Semble, that it was not necessary to plead that the act was “casual and involuntary.”
    
      Appeal by- the defendant, The Jamaica Electric Light Company, from a judgment of the Supreme Court in favor of the plain tiffs^ entered in the office of the clerk of the county of Queens on the 2Sth day of April, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of May, 1899, denying the defendant’s motion for anew trial made upon the minutes.
    
      Henry A. Monfort, for the appellant.
    
      James C. Van Siclen, for the respondents.
   Hatch, J.:

This action was brought to recover damages for a trespass committed by the defendant in April, 1898, upon the lands of the plaintiffs. The trespass consisted in entering upon tlie plaintiffs’ lands' and mutilating certain trees situate thereon, by cutting off several of their limbs. The action is sought to be maintained as coming within the provisions of sections 1667 and 1668 of the Code of Civil Procedure, treble damages for the injury being demanded in the complaint. '

We must assume that the defendant possesses authority to construct and maintain its poles in the highway opposite the plaintiffs’ premises, and to string wires thereon for the purpose of conveying electricity for lighting the streets and other public places.

The defendant put in evidence a contract between the town of Jamaica and itself, also a franchise granted to the defendant authorizing it to set poles and string wires in the streets of the town. The contract and franchise are not set out in full in the record, but the statement in what they consisted showed authority to erect poles and string wires.- In a proper case the town had authority to make such contract and grant such franchise. (Palmer v. Larchmont Electric Co., 158 N. Y. 231.)

No objection was made by the plaintiffs to the introduction of either the contract or franchise, and no point was made that they were not in all respects sufficient to authorize the defendant to use the streets of the town for the purpose for which it assumed to use them. For the purpose of this appeal, therefore, wé must regard the authority to erect the poles and string the wires as being within the franchise granted by the town.

The evidence given upon the trial was sufficient to establish that the defendant, through its manager, substantially directed the places where the poles should be set in the street, and contemplated that there would exist necessity for cutting away the branches of the trees in order to accommodate the wires strung upon the poles and remove thein clear of the obstruction created by the branches.

The defendant would have no right whatever to cut or remove any of the branches of these or other trees upon the lands of another, except it showed an existing necessity therefor in the fulfillment of its contract and the enjoyment of its franchise. There is some testimony in the case which would seem to warrant-the conclusion that the poles might have been set so that there would be no necessity for the removal of any of the branches or foliage of the trees, the injury to which is the subject of this action; and if, by the exercise of a reasonable degree of care, they could have been placed and the wires strung so as not to come in contact with the branches of the trees, even though the exercise of such care was not so convenient as the method adopted, the latter consideration would not justify interference with the trees.

It appeared in the testimony that the wires were required to be so placed as not to come in-contact with the trees, for the reason that its effect would be the grounding of the wires, loss of current creating .a short circuit, and the killing and destroying in course of time of the tree with which it came in contact. If the defendant could, by the proper insulation of its wires, prevent the escape of electricity therefrom, then these conditions would be obviated; ■ and if such measures were practicable then the defendant would be required to resort to them, even though they were more expensive and less convenient. In other words, the right to touch the trees at all must be justified by an existing necessity, and if the purpose can be accomplished without extreme or extraordinary means, then no right would exist to interfere in any manner with the trees.

These considerations are sufficient to support the finding of the jury that there was an unlawful entering upon the land and an unnecessary mutilation, of the trees, constituting the trespass of which complaint is made, within the authority of the sections of the Code to which reference has been had, and that the damages found by the jury are not in measure excessive, giving effect to the testimony bearing thereon.

We have, therefore, little difficulty in supporting this, judgment upon the merits. The evidence clearly disclosed the fact that the managing agent of the defendant gave the directions to erect the poles and to cut such 'branches from the trees as were, required to string the wires and prevent contact. His directions in this regard ]¡vere general, after he had examined the locality, and the agents whom he selected for the performance of the work in all that they did acted within the scope of authority which had been committed to them and in. the prosecution of the. master’s business. The case, therefore, is excluded from the principle which was applied in Vanderbilt v. The Richmond Turnpike Co. (2 N. Y. 479), and is brought within that applied.in Palmeri v. Manhattan R. Co. (133 id. 261) and Lang v. N. Y., L. E. & W. R. R. Co. (80 Hun, 275).

The defendant was, therefore, liable for the trespass committed by its agents, as it must be assumed that the entry upon the land and the cutting of the trees was in the- prosecution of its business, and was authorized and directed by it. The law of the case,, therefore, entitled the plaintiffs to recover.

It is claimed, however, that the judgment must be reversed for errors committed by the learned- trial court in the charge to the' jury. It is insisted that upon the trial the court was requested to charge the jury in these words: “The jury should find whether or hot the injury, if any committed, was casual or involuntary,” and that the court refused so to charge, to which an exception was taken. In view of. the context in the record it may well be doubted whether the question of law. which the request, sought, to present was called to the attention of the court in- such form and manner as to fairly apprise the court of the real nature of the question upon which the.defendant desired the court’s instruction to the jury. But assuming for the present that there was no fault in this regard, we think that' no error was committed by the court .in refusing so to charge. Section 1667 of the- Code provides: “ If any person cuts down * * * any wood, underwood, tree, or timber, or girdles, or otherwise despoils a tree on the land of another, without the owner’s leave; or. on the common, or other land, of a city, village or town, without having right or privilege in •those lands, or license from the proper officer, an action may be maintained against -him by the owner,” etc. The following section provides that in an action brought as prescribed in the last section the plaintiff may state in his complaint the amount of his damages and demand judgment for treble the sum so stated; and if a recovery be had of any damages he is entitled to treble the amount, except where the verdict finds affirmatively that the injury for which the action was brought was casual and involuntary, or that the defendant, when he committed the injury, had probable causé to believe that the land was his own. The action, therefore, lies for the entry and spoliation without the owner’s consent, unless the exception can be made applicable. In the present case the complaint avers that the entry and the cutting were unlawful, and done without any leave or permission being given by the plaintiffs. The answer, inter alia, is a denial, but' it contains no averment that the entry or the cutting was casual and involuntary, or that the defendant had probable' cause to believe that the land was its own. The proof upon the trial was undisputed that the entry was without consent, and that the cutting was done for the most part, if not all, within the line of the plaintiffs’ premises. There was no claim in the answer or proof upon the trial that the cutting was by mistake, or was casual and involuntary. On the contrary, each act, both of entry and cutting, was fully understood, and in this respect there was not even claim of mistake. Consequently, there was no basis, either in proof or pleading, which would have authorized a finding by the jury that the entry and cutting, or either of those acts, was casual and involuntary; and there was, therefore, no basis, either in fact or law, to support the request to charge. It was not necessary to affirmatively plead that the act of which complaint was made was a casual and involuntary act, for, if the proof warranted, the defendant would be entitled to such finding, even though not pleaded. (Note to Throop’s Code, § 1668 ; Humes v. Proctor, 57 N. Y. St. Repr. 284.) We only call attention to the fact that no such claim was made to emphasize the fact that no basis existed to support the request to charge.

We have examined the other questions presented and find no error therein.

The judgment should, therefore, be affirmed.

All concurred.

Judgment and order affirmed, with costs.  