
    The Western Union Telegraph Company v. Smith.
    
      Action by farm owner against telegraph company for cutting trees along highway — Oral license, not authorized by landlord, from tenant, acted upon in good faith by company— Will defeat or mitigate recovery of exemplary damages though not compensation — Law of damages.
    
    In an action against a telegraph company by the owner of a farm for the wrongful cutting of shade trees growing along a highway which passes through it, an oral license from a tenant not authorized to give it, if acted upon in good faith, and the instructions of the company to its servants with respect to the manner of trimming trees along its line, if given in good faith, are competent to defeat or mitigate the recovery of exemplary damages, though not competent to prevent the recovery of full compensation.
    (Decided January 22, 1901.)
    Error to the Circuit Court of Clark county.
    Smith brought suit in the court of common pleas to recover damages for injuries done to his shade trees by the defendant. He alleged that he was the owner of a farm through which passes a public highway along which he had shade trees of much beauty. The company had wires along said highway and poles for their support; that in the growth of the trees their branches had reached the wires and interfered with their operation. Whereupon he authorized the company to trim the small branches of said trees each year, but only to such extent as might be necessary to prevent such interference. That in disregard of his rights and of the restriction placed by him upon said permission the company wrongfully and unnecessarily severed the tops of some of said trees and large limbs from others, thus destroying their beauty and usefulness as shade trees and unfavorably affecting their vitality. The material portion of the answer is a denial that the servants of the company liad trimmed the trees unnecessarily or in excess of the permission given. On the trial the plaintiff offered evidence tending to establish the allegations of his petition. The company offered evidence to show not only that the injury was much less than that which the plaintiff claimed and less than the testimony of some of his witnesses tended to establish, but also that a tenant in charge of the farm had given the company’s servants oral permission to trim the trees precisely as they were trimmed on this occasion. This evidence was admitted but the court instructed the jury: “If you find that the defendant’s servants did not do more to said trees than the petitioner says he had permitted it to do from, time to time, the plaintiff cannot recover even nominal damages from the defendant. But I charge you that any cutting of said trees beyond the extent of what he had so permitted, if you so find from the evidence, without the consent of the plaintiff, would have been wrongful and would entitle hint to recover at least nominal damages. And, the interest of said plaintiff in said trees being a property inhering in the land itself, such consent to cut and sever from said trees, limbs and branches in excess of that which he says he had given permission to do, would have to be in writing. No mere verbal permission to do such alleged excessive cutting would protect the defendant from liability for damages for such excessive cutting. * * * If you should find upon the said issues under the charge of the court and the evidence in favor of the plaintiff, he would be entitled to recover of the defendant actual or compensatory damages, the measure of which in a case where the trees injured, if you so- find, have no substantial value as timber severed from the realty, is the difference between the value of the land before and after the injury consequent upon such injury. * * * I charge you further that if you find from the evidence and the charge of the court that the plaintiff is entitled to compensatory damages, you are at liberty to go further and find what the law denominates punitive damages under the following circumstances: If you find from the evidence that the defendant’s agents in such cutting of said trees acted wantonly and recklessly:and without regard to the rights of the plaintiff then you may add such punitive damages as you may deem proper not beyond the amount in all of $5,000.00 (the amount sued for), and in such case you may take into consideration and allow as a part of compensatory damages, reasonable fees of counsel.”
    Evidence to shoAv that the trees were trimmed on this occasion in the usual manner and only to the usual extent, and that the company’s instructions to its servants Avere to trim the trees so as to keep the Avire clear for a year was offered by the defendant and rejected by the court. The jury returned a verdict in favor of the plaintiff for $2,350. A motion for a neAV trial was overruled and judgment rendered for the amount of the verdict. The judgment was affirmed by the circuit court.
    
      Oscar T. Martin and Geo. E. Fearons, for plaintiff in error.
    The principle of exemplary damages or punishment in civil cases was for many years the subject of much discussion among the text Avriters. Many opposed it as a violation of constitutional right and conceded that it was dangerous and liable to abuse, but finally it has become the rule in most of the states. 1 Sutherland, on Damages, page 722.
    The first and most glaring error to be discussed is that instruction of the court which solemnly declared the law of the land to be, that a party by his agent could grant a verbal permit to the agent of another party to do a certain act, and when action is brought for the consequences of such act and exemplary damages claimed, the fact that such verbal permission was granted would be no protection to the defendant.
    It is unquestionably true that plaintiff’s interest in his trees was an interest in real estate. It is also true that a. grant of an interest in real estate to be valid must be in writing. But the error consists in treating the permission to cut the trees as a grant, when it was in fact only a license. The defendant does not claim to have acquired of the plaintiff any property right in his trees, but only to have obtained a license to cut away limbs and branches. Cook v. Stearns, 11 Mass., 533; Thomas v. Sorrell, Vaughn, 351.
    A license may be oral and is revocable at the pleasure of the licensor, but revocation cannot affect the validity of the acts already done under the license. Wheeler v. West, 71 Cal., 126; Murray v. Gibson, 211 Ill. App., 488.
    A plea of license does not bring in question the title to real estate. Wheeler v. Powell, 7 N. H., 515.
    Licenses are not only valid Avhen created by parol but are usually so created. Texas Ry. v. Jarrell, 60 Tex., 267; Druse v. Wheeler, 26 Mich., 189.
    A parol license is an absolute defense against trespass for doing the act for Avhich permission Avas given, if done before revocation. Miller v. Auburn R. Co., 6 Hill N. Y., 61; Huff v. McCauley, 53 Pa. St., 206; Cook v. Box & Lumber Co., 87 Ind., 531; Williams v. Morrison, 32 Fed. Rep., 177; Sterling v. Warden, 51 N. H., 217.
    Parol licenses have even been held irrevocable when money has been expended under them, although the effect might result practically as vesting a permanent easement on land. Parol license to build a railway across one’s land where money was expended in reliance therein was held irrevocable in Campbell v. Railway Co., 110 Ind., 490; Pierson v. Canal Co., 2 Disn., 100.
    A license to enter upon the land of another and do a particular act or a series of acts, may be valid though not granted by deed or in writing. Such a license does not transfer any interest in land, although when granted for a valuable consideration and acted upon, it cannot be countermanded. Claflin v. Carpenter, 4 Met., 580; Chitty on Contracts, 300-2; Greenleaf on Evidence, 271.
    
      In an action for trespass for cutting and removing timber, tbe defendant assumed that he had a license to do the acts complained of by virtue of a verbal contract for the sale of the trees cut and removed and that the contract had been executed. This was properly held to be a good plea in bar to the action. Seleh v. Jones, 28 Ind., 255.
    But assuming that there must be consent in writing and that it was a statutory right, it was for the benefit of the owner of the land. It could therefore be waived by him, and if the issue is made upon such waiver or verbal permission, then it would be competent for defendant to show that such verbal permission had been granted.
    Section 6871 make it a statutory duty for a miner to do certain specific things, supply timber for props, etc., in his mine, yet the Supreme Court has held that the contributory negligence of an employe, who was injured by the failure of the mine owner to supply the necessary timber for props, etc., and the contributory negligence of the miner would defeat a recovery. Coal Co. v. Estievenard, 53 Ohio St., 43; 28 Am. & Eng. Ency. Law, Title, Waiver, p. 535.
    Sections 298 and 301 make it the duty of the operator of a coal mine to keep same free from coal gas and gives a cause of action for failure to comply with the statutory requirements. Yet held this did not abrogate the common laAv rule that one who contributes to cause an injury cannot recover. Krause v. Morgan, 53 Ohio St., 26.
    By granting verbal permission to trim the trees the owner waived the right to have same only in writing and cannot noAv insist upon the legal obligation to make such grant only in writing.
    
      The pertinency of the charge grows out of the facts of the asserted claim on the part of the defendant that fhe trees were a nuisance. Proof was offered tending to show it. The facts stated were attempted to be controverted, and the issue of fact was directly made between the witness Forgy, that the trees had a tendency to injure the roadway, and the witness Hill, who, in rebuttal, attempted to controvert the statement. The defendant, therefore, was entitled to an application of the law to that state of facts. Embler v. Walker, 51 Hun., 384; Gen. Dig., Vol 6, 996; Hickey v. Railway Co., 96 Mich., 498.
    When the plaintiff himself gives authority to enter upon his premises or into his house, he cannot, because the defendant exceeds or abuses his authority, convert that which was originally done under the sanction of his own license, into, a trespass, but must seek some other form of remedy. 23 N. E., 79; Dingley v. Buffman, 57 Me., 379; Smith v. Pierce, 110 Mass., 35; Cooley on Torts, 306; 13 Am. & Eng. Ency. Law — License, 546.
    One who enters by permission another’s close is not liable for entering another’s part of the close. Richmond v. Fiske, 160 Mass., 34; 35 N. E., 103; 110 Mass., 39.
    The court had charged in stating the issues, that the defendant did not have any right in said highway by virtue of its charter under the laws of the United States paramount to said plaintiff, which would authorize it to cut and trim said trees of said plaintiff without his consent. This took out of the case -the answer of the defendant as to its paramount right. Williams v. Sprigg, 6 Ohio St., 585
    Use of track is notice of right of way. Day v. Railroad Co., 41 Ohio St., 392.
    
      Under the rebuttal presumptions are those intendments of the law which only hold good until disproved. Chamberlain’s Best on Evidence, Sec. 314.
    The presumed consideration of promissory notes is good until the contrary is shown. That an interrupted exercise of a right for a long period with the knowledge of those who have a right to object, and without such objections it would be presumed that there was a legal acquirement of such right. Chamberlain’s Best on Evidence, See. 326; Harriman v. Railway Co., 45 Ohio St., 11; Goodin v. Canal Co., 18 Ohio St., 169; Railway Co. v. Zinn, 18 Ohio St., 417; B. & O. Ry. Co. v. Railway Co., 1 Circ. Dec., 60, 1 C. C., 100.
    Possession of land is evidence of title to be left to the jury. Wendall v. Blanchard, 2 N. H., 456.
    Presumption arising from great lapse of time. Carter v. Tinnicum Fishing Co., 77 Penn., 315.
    Unmolested possession for thirty years authorizes the presumption of a grant. Barclay v. Howell, 31 U. S., 498.
    A grant may be presumed from acts of use and occupation for ten years, accompanied by a claim of ownership. Burdeck v. Heirely, 23 Iowa, 511.
    Nor did the court in its charge instruct the jury as to the market value being the measure of damages, but stated the rule to be the value of the land, so that with the permitted evidence and the court’s charge, the jury could find any value. 14 Am. & Eng. Ency. Law., 467.
    The wanton and reckless act which would justify punitive damages, is such that implies intentional wrong. 1 Sutherland Damages, 724; Simpson v. McCaffery, 13 Ohio, 509.
    
      
      Little & Spencer and Edward S. Houck, for defendant in error.
    There was no evidence in the case tending to show permission to trim the trees, and there is no claim that there was written permission. Daily v. State, 51 Ohio St., 348; Sec. 3457, Rev. Stat.
    As to exemplary damage the charge of the court is fully supported by Roberts v. Mason, 10 Ohio St., 277; Railway Co. v. Slusser, 19 Ohio St., 157; Railway Co. v. Dunn, 19 Ohio St., 162.
    The measure of damages on account of injury to or destruction of trees depends upon their character and purpose. Thus where they have an intrinsic value separate from and not dependent upon the soil, the measure may be their value severed from the land. It is otherwise where their utility wholly or partly depends upon their attachment to and growth in the soil. Such are fruit, ornamental and shade trees. The measure of damages with respect to these, under the authorities, is that given by the court in its charge. Counsel seem to object to it as erroneous. Evans v. Keystate Gas Co., 148 N. Y., 112.
    The court follows its former holding in Dwight v. Railroad Co., 132 N. Y., 199, where the whole subject is elaborately discussed in the light of the authorities, and identically the same rule announced. It is recognized in the following cases and seems to be the settled law: Carner v. Railway Co., 43 Minn., 375; Hoye v. Railway Co., 46 Minn., 269; United States v. Taylor, 35 Fed., 484; Nixon v. Stillwell, 52 Hun., 353; Montgomery v. Locke, 72 Cal., 75; Mitchell v. Billingsley, 17 Ala., 391; Wallace v. Goodall, 18 N. H., 430; Kolb v. Bankead, 18 Tex., 228; Longfellow v. Quinsley, 33 Me., 457; Bennett v. Thompson, 13 Ired. (N. C.), 149; Hoyt v. Telephone Co., 60 Conn., 385; White v. Stoner, 18 (Mo.), App., 540; Shaw v. H. & St. L. J. Co., 54 (Mo.) App., 223; Graves v. Shattuck, 35 N. H., 257; Karst v. Railroad Co., 22 Minn., 118; Muldrow v. Railroad Co., 62 (Mo.) App., 431; Toledo v. Grasser, 6 C. D., 782, 12 C. C., 520; Befay v. Wheeler, 84 Wis., 135.
    It must be borne in mind that tbe value of the land was not the single thing sought. It was the difference in values before and after the injuries. If a distinction exists between the “value” of land and its “market value,” it is hardly conceivable that the difference between the values before and after the injury would vary from the difference between the market values before and after such injury.
   Shauck, C. J.

The trial of the case was unnecessarily prolonged and the record expanded by introducing the opinions of witnesses whose information did not exceed that of the jury. In other respects there appears to have intervened no error which substantially affected the recovery of compensatory damages, unless they exceeded the amount shown by the evidence. The instruction that oral permission beyond that given by the plaintiff in person, and admitted in his petition, would not avail the defendant, though indicating an incorrect view of the law, did not operate prejudicially in so far as a recovery of actual damages was had. The undisputed evidence shows that the tenant from whom such further permission was said to have been received was without authority to give it. A license, whether written or oral, if given by an unauthorized person, would not defeat a recovery by the owner of damages actually sustained.

But the instructions given permitted the jury to award exemplary damages and the amount recovered suggests that damages of that character entered into the verdict. A consideration of the rules with respect to such damages is required by the fact that the instructions permitted their recovery, the record not showing affirmatively that they were not included in the verdict. Such damages being puhitive in their nature are an exception to the general rules that in private actions the injured party is to be made whole, and that acts deemed worthy of punishment are prosecuted by the state. With respect to the recovery oi damages of that character in private actions the different states have not adopted a uniform rule. The requisites to their recovery in this state were described in Simpson v. McCaffrey, 13 Ohio, 522: “The principle of permitting damages in certain cases, to go beyond naked compensation, is for example, and the punishment of the guilty party for the wicked, corrupt and malignant motive and design, which prompted him to the wrongful act. A trespass may be committed from a mistaken notion of power, and from an honest motive to accomplish some good end. But the layr tolerates no such abuse of power, nor excuses such act; yet, in morals, and the eye of the law, there is a vast difference between the criminality of a person acting mistakenly from a worthy motive, and one committing the same act from a wanton and malignant spirit, and with a corrupt and wicked design. Hence where a jury are called upon to give smart money, or damages beyond compensation, to punish the party guilty of the wrongful act, any evidence which would show this difference, or rather all the facts and circumstances which tend to explain or disclose the motives and design of thé party committing the wrongful act, are evidence which should go to the jury for their due consideration.”/^That “a corporation may be subjected to exemplary or punitive damages for tortious acts of its agents or servants done within the scope of their employment, in all cases where natural persons, acting for themselves, if guilty of like tortious acts, would be liable for such damages,” was held in the Atlantic and Great Western Railway Company v. Dunn, 19 Ohio St., 162. Although the case was decided by a divided court, it es: tablished the law upon the subject for this state. But since in cases of this character the punishment may not fall upon the actual wrongdoer, they present reasons why great care should be taken that such damages are not imposed unless all the conditions for their recovery are present. To show that they were not present in this case an oral license from an unauthorized tenant in charge of the farm, if acted upon in good faith, as well as the instructions of the company to its servants, if given in good faith, were available. While the evidence offered by the plaintiff below tended to establish all that is necessary to a recovery of full compensation, there is little evidence of such motive as would justify a recovery of punitive damages. The court should have admitted all the evidence offered to show the absence of such motive, or it should have instructed the jury that only compensation should be awarded. j;

Judgments reversed.

Minshall, Williams, Burket, Spear and Davis, JJ., concur.  