
    Z. Edwards Lewis, Respondent, v. George K. Thompson, Appellant.
    
      Trespass—action under the Code for treble damages for cutting down treesa tenant for years cannot maintain it—he may recocer his actual damages.
    
    A lessee for years of premises upon which trees stand cannot maintain an action, under section 1667 of the Code of Civil Procedure, for treble damages for the cutting down of trees. Such a person is not an “owner” within the meaning of that section of the Code.
    The term “ owner ” is used in the Code of Civil Procedure in the same sense in which it was used in the Revised Laws.and subsequently in the Revised Statutes.
    A lessee for years may, however, maintain a common-law action for trespass based upon the fact that he is in possession, and may recover his actual damages.
    
      - Appeal by the defendant, George K. Thompson,.from a judg-^ ment of the County Court of "Westchester county in favor of the plaintiff,-entered in the office of the clerk-of. the county of Westchester on the 21st day of September, .1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of September, 1895, denying the defendant’s motion for a new trial, made upon the minutes.
    ■ . The action.Was brought to recover damages for trespass in cutting down trees, in which, action plaintiff'claimed’treble damages under section-1667 of-the Code-of Civil- Procedure, and the judgment awarded treble damages, $150, to the plaintiff.
    
      Heñry G. K. Reath, for the appellant.
    
      O. H ds J. A. Young & Terry, for the respondent.
   Willard Bartlett, J.:

This suit differs in some respects from the ordinary action of trespass for the disturbance" of possessory rights: The complaint not only-states-facts sufficient to constitute a cause-of action in such a suit,-but the prayer for treble damages indicates that the purpose of the plaintiff was to enforce the statutory remedy given by section 1667 of the Code of Civil Prpcediu'e,_where the trespass consists in cutting down trees, and the stipulation in the record -to the effect that the action was brought under -that- section leaves .no -doubt on-the subject.

■ It does not seem to me, however, that the plaintiff has established such an'ownership in the land' upon which the trees are alleged to have been cut, as to entitle him to the remedy provided for by that section. ' '

The plaintiff- was merely, a lessee for years of the premises upon which the trees stood, The' Code of Civil Procedure confers the right to maintain an action for the recovery-of treble damages,: in such cases, .only- upon the owner '.¡of the- land. . I do not think a lessee for years is to be deemed an owner within the meaning of the statute. ' '

The provision ' of the Code is ' as follows : 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; 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,, or the city, village f or town, as the case may be.” (§ 1661.)

This provision was derived from a similar one in the Revised. Statutes, in these words: “ Every person who shall cut down or carry off any wood, underwood, trees or timber, or shall girdle or otherwise despoil any trees on the land of any other person, without the leave of the owner thereof, or on the land or commons of any city or town, without having any right or privilege in such commons, and without license from the corporation or proper officers of such city or town, shall forfeit and pay to the owner of such land, or. to such city or.town, treble the amount of the damages.which shall be assessed therefor in an action of trespass, by a jury, or by. á justice of the peace in cases provided by law.” (2 R. S. [2d ed.] 261, 262.)

The provision just quoted from the Revised Statutes was itself based on an earlier enactment, to be found in the Revised Laws, which provided in substance, among other things, that if.any person should cut any wood, underwood, trees or timber oil' the. land of another, or carry off the same, without the leave or permission of the owner or owners thereof,” such person should pay “ to the owner or owners of-such'land treble the value of the wood, underwood, trees or timber, cut or carried off as. aforesaid, to - be recovered, with costs, in an action of trespass, before any court, -having cognizance of the same, by the owner or owners of the.land on which such trespass- shall have been committed.” ■ (1 Rev; Laws, 525, 526.)

It will be observed that under the Revised Laws the recovery provided for was merely three times the value of the wood cut or carried away. The Revised Statutes enlarged the measure of possible recovery to three times the damage done hy the trespass. (See Revisers’ Notes, Appendix to 3 R. S. [2d ed.] 116 ; Van Deusen v. Young, 29 N. Y. 25.) This may be, and ordinarily, would be;. very much more than simply the value of the wood. Thus, in. Argotsinger v. Vines (82 N. Y. 308), where the "trespasser had cut timber from twenty-two acres of woodland on a farm,, it was held that the .measure of damages was ' the difference in the value of the farm with the timber on it and after the timber had been cut-

in all this legislation relative to the recovery of .treble damages for trespasses of this character the remedy has been given to the owner or owners of the land upon which the trespass was committed. That, the owner or owners..of the freehold'must be meant seems, to me to be shown by the restriction of the damages in the early statute to. three times the value of the wood cut. A tenant or lessee for years would' have no property or interest in such wood. It would belong to. the owner of the inheritance, and he alone could recover its value at common. law. The right to .recover three times its value, was given to him; and I think the term owner or owners, having been used in this sense, in the Revised Laws, was used in . the same sense in the Revised Statutes and in the present Code of Civil Procedure,. whose provisions on this subject are- unquestionably based on those of the Revised Statutes.

The same conclusion as to the ■ meaning of the word owner in enactments of this sort is sustained' by authority. No case in this State has fallen under our notice in which a suit, founded upon section-1667 of the Code, has been maintained or attempted by any person who was not an owner of the fee of the land where the trees. or timber grew. Similar statutes exist, however, in many other States, and we find adjudications, in Illinois, Michigan and Mississippi to the effect that it is essential, to enable the plaintiff to recover under such enactments, that he should be the owner of the freehold.

In Illinois, in an early case which has been repeatedly cited’ with approval, the statute gave the owner a- certain penalty for each tree of a particular description cut upon his land without his permission, and authorized' him to recover the penalty in an action of debt. Under this statute it Avas held that the party seeking to recover the penalty must aver in his declaration and prove on the trial that .he Avas the owner in fee simple of the land oh which the' trespass' was committed. (Edwards v. Hill, 11 Ill. 22.) In Michigan the statute, closely resembles our own, providing-that persons who cut down or carry off any wood, underwood, trees or timber, without leave of the owner of the land, shall be liable to the owner in treble damages; but if the trespass is involuntary, or the defendant had probable cause to believe the land was his, only single damages are recoverable, as is the case under the 'Code in this State. (Code Civ. Proc. § 1668, subd. 1.) In Achey v. Hull (7 Mich. 423) the Supreme Court of Michigan, speaking through Campbell, J., said of this statute that it was not framed to protect possessory rights, “hut was made to give to the owners of the fee a right to sue in the form of trespass for the enumerated injuries to their inheritance. If the tenant in possession, whether owner or not, seeks damages for the disturbance of rights merely possessory, he is still left to his common-law action. But here the damages, which are alleged to be trebled, are not damages to the temporary possession, but to the freehold.” Under a like statute in Mississippi the trial judge charged the jury that the possession of the locus in quo alone was sufficient to authorize the plaintiff to maintain the action. The Supreme Court held that this instruction was erroneous, inasmuch as the cutting of the trees Was an injury to the freehold and, therefore, the plaintiff claiming the statutory penalty must be the real or apparent owner of the freehold. (McCleary v. Anthony, 54 Miss. 708.)

In the light of these authorities, and having regard to the course of legislation in our own State in reference to treble damages for trespass in cutting trees, I am satisfied that the term “ owner,” in section 1667 of the Code of Civil Procedure, does not extend to a lessee for years. This view takes nothing away from the right of the tenant, who may always maintain his common-law action for trespass based upon the fact that he is in possession; and, in the present suit, the plaintiff, notwithstanding his claim for treble damages under the statute, was entitled at common law to recover his actual damages if he proved to tlie satisfaction of the jury that he was in possession and occupation of that part of the premises upon which the tree cutting was done, although merely as tenant. (Starkweather v. Quigley, 7 Hun, 29.) The issue of actual occupation was in the case, because the written lease under which the plaintiff claimed did not distinctly indicate the extent of the leased property, and the evidence in behalf of the plaintiff was sufficient to sustain a finding in his favor on that, issue.

The judgment should, therefore, be affirmed if the plaintiff will stipulate to reduce the judgment to fifty dollars and costs; otherwise the judgment should be reversed and a new trial granted.

All concurred.

Judgment and order denying new trial reversed and a new trial granted,- costs to.abide' the event, unless plaintiff stipulates within twenty days to. reduce the judgment to.the sum of fifty dollars and costs. If such stipulation is filed, ■ the judgment so reduced, is affirmed, without costs. ,  